McConnell: Senate Would Work With Trump to Fill Hypothetical Supreme Court Vacancy in 2020

May 29, 2019 Updated: May 29, 2019

Senate Majority Leader Mitch McConnell (R-Ky.) said that if President Donald Trump would get the opportunity to nominate a Supreme Court justice in 2020, an election year, the Senate would assist Trump in filling the vacancy.

“Oh, we’d fill it,” he said with a smile, to laughs from the audience at a Chamber of Commerce event in Paducah, Kentucky, after an audience member asked what McConnell’s position would be on filling a vacancy in case a Supreme Court justice died next year.

The question has to do with a longstanding dispute over the handling of Supreme Court nominations. Prominent lawmakers of both parties have at different times made the argument that a president shouldn’t fill Supreme Court vacancies during an election season and that the Senate shouldn’t let a nominee through the confirmation process. Having presented various justifications for the stance, both parties have shown a willingness to soften it when politically convenient.

“It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over,” then-Sen. Joe Biden said in 1992, when he chaired the Judiciary Committee. “That is what is fair to the nominee and is central to the process.”

Sen. Chuck Schumer (D-N.Y.) expressed in July 2007 that not only should the Senate refuse to confirm another justice potentially nominated in the last 18 months of the presidency of George W. Bush “except in extraordinary circumstances,” but the Senate should continue such practice indefinitely “if there is another Republican elected with the same selection criteria.”

These and other examples were then used in 2016 by McConnell to block the nomination of Judge Merrick Garland to the Supreme Court by then-President Barack Obama.

He said it was a matter of principle, calling it the “Biden rule.”

“It’s clear that concern over confirming Supreme Court nominations made near the end of a presidential term is not new,” McConnell said in a Feb. 22, 2016, statement. “Given that we are in the midst of the presidential election process, the Chairman of the Judiciary Committee and I believe that it is today the American people who are best-positioned to help make this important decision—rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election.”

Indeed, Obama was at the end of his second term and the 2014 midterms were seen by the Republican Party as a rebuke of his policies, gaining Republicans nine seats in the Senate and 14 in the House of Representatives.

Trump, on the other hand, is in his first term, and his first midterm performance—losing the House, but expanding the Senate majority—was generally better than that of several of his predecessors.

In recent months, McConnell appears to have withdrawn emphasis from his argument that “the American people‎ should have a voice in the selection of their next Supreme Court Justice” and instead is focusing on the fact that it’s been rare for “a Senate controlled by a different party from the president” to confirm a Supreme Court justice “to a vacancy created in the middle of a presidential election,” as he told CBS News in October 2018.

Follow Petr on Twitter: @petrsvab
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