Supreme Court Justice Antonin Scalia had barely breathed his last in February 2016 when Senate Majority Leader Mitch McConnell (R-Ky.) announced that the Republican-controlled Senate wouldn’t act on any replacement proposed by President Obama.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
As the Los Angeles Times noted in an editorial at the time, McConnell’s justification for keeping the Scalia seat open was “self-serving sophistry.”
We added: “The American people do have a voice in any nomination Obama makes. They ‘spoke’ when they elected him to a second term that has 11 months remaining. His authority to nominate Supreme Court justices is no more diminished by his supposed lame-duck status than any of his other constitutional powers.”
Alas, McConnell’s stonewall held. Because the Senate refused to act on Obama’s nomination of Judge Merrick Garland to succeed Scalia, the seat was held open until a new president, Donald Trump nominated Judge Neil M. Gorsuch, who was confirmed largely on party lines.
It was obvious from the start that McConnell’s invocation of the “principle” that Supreme Court seats shouldn’t be filled in an election year was bogus. Now it develops that it was a principle he’s willing to abandon to serve his party’s interests.
On Tuesday, McConnell was asked at a Chamber of Commerce luncheon in Paducah, Ky., about the possibility that a Supreme Court justice might die next year. The questioner asked: “What will your position be on filling that spot?”
Ted Barrett of CNN reported on what happened next:
“The leader took a long sip of what appeared to be iced tea before announcing with a smile, ‘Oh, we’d fill it,’ triggering loud laughter from the audience.”
It was a Mr. Burns moment that has brought cries of “Hypocrisy!” from McConnell’s critics. His spokesman and defenders in the media argued that no hypocrisy was involved because the actual “principle” guiding McConnell is that Supreme Court nominees shouldn’t be confirmed in an election year in which the Senate and the White House are controlled by different parties.
McConnell did float this alternative justification in an interview in March 2016, telling reporters: “You’d have to go back to 1888 — you do remember Grover Cleveland, right? — to find the last time a vacancy created in the Supreme Court in a presidential year was confirmed by a Senate of a different party.”
The fact that McConnell offered shifting rationalizations for his obstructionism doesn’t alter the fact that stonewalling Garland was a nakedly partisan power play. Principles and precedents had nothing to do with it.
Partisanship had poisoned the Supreme Court confirmation process long before Scalia died. But in blocking any consideration of Garland, McConnell escalated the conflict to the political equivalent of DEFCON 1. He escalated it even further when he engineered the end of the filibuster on Supreme Court nominations to secure Gorsuch’s confirmation. (In that instance, he was following the example of former Democratic Majority Leader Harry Reid, whose party ended the filibuster for lower-court appointments.)
To accuse McConnell of hypocrisy, a venial sin committed by most politicians, obscures the fact that he is guilty of the mortal sin of violating a political and constitutional norm and exacerbating a partisan war over Supreme Court nominations that shows no sign of abating.
It’s McConnell’s fault that some Democratic presidential candidates are considering the terrible idea of increasing the number of seats on the Supreme Court to compensate for the seat “stolen” from Obama in 2016. McConnell should think about that as he sips his iced tea.