Senate Majority Leader Mitch McConnell renewed his vow to vote on a new Supreme Court justice this fall, taking to the Senate floor Thursday to reject Democrats’ demands to put it off until next year.
Democrats, still seething over the way Republicans blocked consideration of a pick in 2016 ahead of the presidential election, say that standard should be expanded to include congressional elections as well.
Mr. McConnell said that was completely different.
“This is not 2016. These aren’t the final months of a second-term, constitutionally lame-duck presidency with a presidential election fast approaching. We are right in the middle of this president’s first term,” he said.
He said it’s more accurate to compare this year to 2010, when President Obama nominated and the Democratic-led Senate confirmed Justice Elena Kagan, or 1994, when President Clinton nominated and a Democrat-majority Senate confirmed Justice Stephen G. Breyer.
Indeed, since 1950 there have been seven Supreme Court nominations made and confirmed in a president’s second year in office, heading into a midterm election. Several of those were completed in a matter of days, and none took longer than three months.
“So, just like in numerous other occasions, the process to confirm Justice Kennedy’s successor will take place this year,” Mr. McConnell said.
Justice Anthony M. Kennedy announced his retirement Wednesday, on the final day of major opinions for the high court’s 2017-2018 term.
Democrats immediately pointed to the 2016 flap as a precedent, calling in the “McConnell rule” for not considering vacancies in election years.
They said that last vacancy occurred in February 2016, when Justice Antonin Scalia died, and the GOP kept the seat vacant for more than a year, refusing to even hold hearings on Judge Merrick Garland, President Obama’s pick.
His nomination died at the end of Mr. Obama’s term and President Trump named Neil M. Gorsuch, who did win confirmation.
All of that history came flooding back this week after Justice Anthony M. Kennedy said he’ll step down from the court at the end of July, with Democrats still seething over the treatment Judge Garland received.
“Senator McConnell willingly chose to set a new precedent with his partisan blockade of Merrick Garland,” said Sen. Tom Carper, Delaware Democrat. “Therefore, I am not prepared to move forward on any nominee to fill this lifetime appointment on the Supreme Court until the American people have had their say in November.”
The desperation to delay a nominee is particularly high given the historic role Justice Kennedy has played on the court, acting as a critical pivot, including in the advance of gay rights.
Democrats, eyeing a number of other contentious cases on the horizon, hope they can win enough seats to grab control of the Senate in this year’s elections, giving them a chance to defeat a Trump nominee.
Having the court as a campaign issue, rather than already settled, could also help rally Democrats in the election, delivering even more seats.
Minority Leader Charles E. Schumer said Democrats’ case for delay is even stronger than Mr. McConnell’s was in 2016, since that vacancy arose in February, and this one is in June, little more than four months from the election.
“If the Senate’s constitutional duty to advise and consent is just as important as the president’s right to nominate, which the Constitution says it is, why should a midterm election be any less important than a presidential election?” he said.
Whether he’ll be able to hold his troops in line remains to be seen.
Some Democrats from red states have signaled they are open to considering a Trump nominee on his or her merits.