Asked during an appearance on Fox News Thursday night whether he would allow a Supreme Court nomination to pass if a vacancy opened up and Republicans were in a majority in the Senate next year, McConnell had this to say:
“I’m not going to announce what our appointment schedule might be before we’re in the majority. I hope we’re in a position to make a decision.”
To be clear, what McConnell is saying is that he will not commit to considering a candidate to fill a Supreme Court vacancy in the final two years of President Joe Biden’s term. Which is a step further from even where McConnell had previously drawn the line for him on high court nominations.
You’ll recall that McConnell, as Senate Majority Leader, refused even to give Merrick Garland, President Barack Obama’s nominee to replace the late Antonin Scalia on the Court, a confirmation hearing or meeting in 2016.
“The American people should have a say in the selection of their next Supreme Court justice,” McConnell said at the time. “Therefore, this vacancy should not be filled until we have a new president.”
That stance was considered notable given that Scalia had died in mid-February 2016, meaning Obama had roughly 11 months left in his second term.
It was all the more remarkable because Obama had specifically chosen Garland because of his record as a legal moderate, in the hope that he might also attract votes from Republicans.
McConnell justified his move by citing what he described as the “Biden rule.” That was a reference to a 1992 Senate speech by Biden in which he said that “once the political season is underway, and it is, action on a Supreme Court nomination should be postponed until after end the election campaign. It is worth noting here that there were no vacancies on the Supreme Court at the time Biden delivered his remarks.
Make no mistake: McConnell, by refusing to say whether he would hold hearings for any potential Supreme Court nominees in 2023, which is not an election year, is seeking, again, to change the goals of how and when the Senate will confirm justices.
If McConnell refuses to accept a candidate if a vacancy arises on the court, the message is simple: a president can ONLY expect his Supreme Court nominee to receive a confirmation hearing and vote. If and only if his party controls the Senate. Which is a massive break from past precedent.
If such a scenario were to come to pass, McConnell would almost certainly try to pin that new precedent on the candidate’s ideology.
“I’ll be interested in working with the president when he’s willing to be moderate, but with regards to personnel and the other things that we’re involved in, I’m not going to point out how we’re going to approach it,” McConnell told Axios.
But again, Garland’s instance is instructive here. Garland had a long-standing reputation as a moderate. That was literally why Obama chose him, knowing that Garland would have to be confirmed by a Republican-controlled Senate. And yet, McConnell not only failed to hold confirmation hearings for Garland, he even refused to meet with him.
“I choose not to answer the question,” McConnell told Axios when asked if he would hold a hearing on a Supreme Court nominee if Republicans had a majority in the Senate in 2023.
That answer, or the lack of it, tells you everything you need to know.