Senator McConnell on Whether a GOP Senate Would Consider Biden SCOTUS Nominees

The Senate Minority Leader's remarks add some urgency to progressive appeals for Justice Breyer to retire.

On Monday, Senator Mitch McConnell was a guest on the Hugh Hewitt Show. Anong other subjects, Senator McConnell discussed judicial nominations and the prospect of a Supreme Court vacancy after the 2022 elections.

From the transcript(HH is Hugh Hewitt; MM is Mitch McConnell):

HH: Let me ask you, if you regain the majority in 2022 for the Republicans, and there's a very good chance of that happening, . . . would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?

MM: Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think it's highly unlikely. In fact, no, I don't think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president.

HH: Correct.

MM: And that's why we went ahead with it.

HH: That's why I think people who are angst about Justice Breyer stepping down right now are just nuts. If he retired next year after the abortion case, I just don't see him retiring with Dobbs and the 2nd Amendment on the docket, and possibly affirmative action. Now let me ask you about the key thing, Leader, about the 2023 term. Again, if you were back as the Senate Republican Leader, and I hope you are, and a Democrat retires at the end of 2023, and there are 18 months, that would be the Anthony Kennedy precedent. Would they get a fair shot at a hearing, not a radical, but a normal mainstream liberal?

MM: Well, we'd have to wait and see what happens. You mentioned Justice Breyer. I do want to give him a shout-out, though, because he joined what Justice Ginsburg said in 2019 that nine is the right number for the Supreme Court. And I admire him for that. I think even the liberal justices on the Supreme Court have made it clear that court packing is a terrible idea.

HH: 100% agree. Now President Biden will be advancing many very liberal judicial nominees at the district court level. Democratic senators from their states, when there were two Democrats, blocked many fine judicial nominees, especially in my old state of California, but all across the country. Wherever there were two Democrats, they blocked district court nominees. Will Senator Schumer and his caucus adopt the same deference that you demonstrated towards Democratic senators during your tenure when it comes to Biden nominees in states with two Republican senators for the district court, Senator McConnell?

MM: Well, my understanding is that Dick Durbin, who is now the chairman of the Judiciary Committee, is going to honor the blue slip for district judges. So as you suggest, what that means is in a state where you have one or two Republican senators, they'd have to sign off. They may not be able to choose the nominee, but would have to sign off it. And my understanding is that the new chairman of Judiciary is going to continue that.

The key takeaways from the interview are that a Majority Leader McConnell would follow his own precedent concerning election year vacancy if the Senate and White House are controlled by different parties, and left his options open if the vacancy arose in 2023.

The other notable part of this exchange is that Senator McConnell confirmed that Senate Judiciary Committee Chairman Dick Durbin is observing blue slips for district court nominees, as is traditional. We have multiple district court vacancies here in Ohio, and it appears the White House is only considering nominees who would receive a blue slip from Senator Rob Portman. Note also there was no mention of circuit court nominees in Senator McConnell's remarks. Blue slips have become less important for circuit court nominations, and for good reason, and I do not think Senator Durbin will allow Republican Senators to use blue slips to prevent President Biden from filling open circuit court seats.

Incidentally, I was on the Hugh Hewitt show this morning to discuss McConnell's comments and SCOTUS with University of Texas law professor Steve Vladeck. Audio of our segment will likely be posted on the Hugh Hewitt podcast here.

Comments

[DaivdBehar]

All Biden nominees will be Marxists. All measures should be used to block them from the bench.

That being said, all lawyers are indoctrinated into supernatural core doctrines. Their utmost priority is on lawyer rent seeking, through procedure, and the plunder of the assets of productive people. All believe in judicial review in violation of the plain language of Article I Section 1. All are paid by and support big government tyranny. All will perpetuate the failures of every self stated goal of every law subject.

Any tactic to block a Biden nominee will only have a tiny effect, compared to the enormous failures of this toxic profession.

[DaivdBehar]

McConnell should address the Ashli Babbitt story. If the life of career criminal, George Floyd, is worth $27 million, the life of this patriot, veteran, and unarmed pro-democracy protester is worth $100 million. Everyone is better off with Floyd dead, including that fake boohooing family. Everyone is devastated at the loss of this wonderful mother.

[Bruce Hayden]

Except that the $27 million was from Minneapolis doing battlefield prep in the criminal trial of the lead police officer. In law school, we learned that the measure of damages for a lost life was their economic value to their family and heirs. In Floyd’s case, that meant essentially zero, which is probably what his family would have received if the case had gone to trial. His attorney, Crump, is a master at gaining large settlements in dubious cases with significant racial overtones.

[DaivdBehar]

The killing of a career criminal has a net benefit to all, especially to those closest in physical proximity. That makes the family the biggest beneficiaries of his death. The settlement should have been subrogated for all the social and actual costs he generated by his criminality.

[apedad]

Sen. McConnell has a valid reason so I don't have a problem with his position.

I did see some conversations about why he would blatantly say this since it'll just add fuel to next year's Senate races.

[Krychek_2]

His valid reason is that he thinks no Democrat should ever be allowed to put anyone on the Supreme Court and the rules should be changed as necessary to bring about that result. And I would have far more respect for him if he would candidly say so rather than make up this nonsense about the president and senate being of the same party. Nobody believes that anyway.

[Brett Bellmore]

Look, obviously Republicans and Democrats disagree about stuff, lots of stuff. Democrats think Republicans shouldn't be putting anybody on the Court, and visa versa, because we each think the other will be making bad picks.

Our ideas of what a good pick is are widely divergent, even disjoint: There is essentially nobody Biden would nominate to the Supreme court that Republicans would agree should be on it, just as there wasn't anybody Trump nominated to the Supreme court that Democrats would agree should be on it.

We have incompatible visions of what judges are supposed to be doing, and each of us finds the other's view of the matter to not just be wrong, but abhorrent.

That's too narrow: We have incompatible visions of what GOVERNMENT is supposed to be doing, and each of us finds the other's view of the matter to not just be wrong, but abhorrent.

So, what exactly did you expect him to say? He did say this: "In fact, no, I don't think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president."

This seems to me an accurate summation of the situation. It merely omits coming out and saying the obvious, which I related above: We both disagree, and mean to do everything in our power to keep the other from doing what they want, because we think the other means to do bad things!

This is, by the way, what Limbaugh was talking about years ago, when he said that he hoped Obama was a failure as a President, and Democrats went nuts about it: He hoped Obama failed, because he understood Obama to intend to do bad things, and you want people to fail at doing bad things.

[Krychek_2]

Well, Scalia and GInsburg, of radically different political persuasions, both received near -unanimous Senate consent, which means a lot of Republicans voted for Ginsburg and a lot of Democrats voted for Scalia. What you are describing has only been the case for a relatively brief period of time.

And, there are far more unanimous Supreme Court decisions than there are 5-4 Supreme Court decisions. Most of the time on a lot of the issues, they agree once they get up there.

So what I'm seeing is obstructionism for the sake of obstructionism. Obama could have nominated another Scalia and McConnell still wouldn't have scheduled a vote because it would have given Obama an accomplishment. And that, I think, needs to stop.

If there is a legitimate reason to oppose a particular nominee, fine, but give him a vote.

[MatthewSlyfield]

Yes, there are a very few justices that got unanimous or near unanimous confirmations in the Senate, but historically, that is very far from the norm.

Supreme Court Nominations (1789-Present)

Going all the way back to 1789 as I count it, there are only around 10 unanimous or near unanimous confirmation votes.

[Krychek_2]

The others may not have gotten unanimous approval, but they did get a vote.

[MatthewSlyfield]

There are 25 nominees in that list that never got a vote, including two of GW Bush's nominees.

[BadLib]

True, "two of GW Bush’s nominees" didn't get a vote for the position they were originally nominated for.

However details matter...

Roberts nomination to Associate Justice was withdrawn to, instead, nominate him to Chief Justice (to which he was confirmed). Alito (who was also confirmed) was then nominated to the Associate Justice position that Roberts was originally nominated for. So the nominee, in this case, did get a vote -- but for a 'higher' position than his original nomination was for.

The other nominee that Bush put up that never got a vote was Harriet Miers. That, of course, was a ridiculous nomination that drew criticism from prominent members of both parties (and from anyone who wanted someone with relevant experience and background to fill O'Conner's seat).

[Brett Bellmore]

Generally not in an election year when the opposing party held the Senate, though, which was McConnell's point.

There are two factors here:

1) The desire not to confirm somebody you don't like.
2) The need to have a complete Court.

As you get further from the next election, factor 2 gets increasingly influential, and the Senate more inclined to hold votes on, and confirm, nominees the majority party doesn't really like. Because not doing so means the Court being short a member for a long while, which they also don't like.

[Greg J]

Tell it to Appeals Court Judge Miguel Estrada

What's that? The Democrats filibustered him, and he never even got a vote?

Yeah, what goes around comes around

[Krychek_2]

Also, it's disingenuous to say that two of Bush's nominees didn't get a vote. Miers dropped out when it became clear the votes weren't there to confirm her, and Roberts did get a vote for the Rehnquist seat even though not for the O'Connor seat.

[NToJ]

Voice votes should be unanimous or near unanimous.

[Brett Bellmore]

Voice votes shouldn't be a thing to begin with.

[Kazinski]

I've got no problem with voice votes because any Senator can request a roll call vote, and I have never seen any evidence it's been abused for controversial legislation

[Hugo S. Cunningham]

Since Clinton's time, we had a reasonably harmonious pattern of Democratic Presidents nominating liberal justices to replace liberal justices, and Republican Presidents nominating conservative justices to replace conservative justices. Republicans shoe-horning in Barrett for the liberal Ginsburg just before the 2020 election was a sharp break in this pattern.

If Democrats had won the solid Senate majority they were counting on in 2020, conservatives would have had to offer a conservative SCotUS resignation (and Biden nomination), if they wanted to avoid a court-packing scheme that no honest person could have blamed Democrats for.

McConnell should lower the temperature by promising to support a reasonable liberal replacement for Breyer, someone like Breyer himself.

[Greg J]

There ARE no "reasonable liberal" judges.

After Gorsuch started casting the 5th vote for a lot of 5-4 correctly rendered decisions, there was a lot of whining from the Left about how if Garland had been on the Court, the vote would have gone teh other way.

Because they know, and we all know, that the Left Wing "Justices" vote in lock step.

Care to prove me wrong?

Just list the 5-4 votes where one of the 4 Left Wing "Justices" voted with Thomas, Alito, and two of Roberts, Kennedy, Kavanaugh, Gorsuch, and/ or Scalia in order to give the Thomas / Alito side the 5

No, a 6-3 or 7-2 vote where the Leftie didn't provide the decisive winning vote doesn't count.

I'll wait, but I won't hold my breath, because I doubt you're going to find even 1.

And I know you wont find as many as Kennedy, or even Roberts, has broken with the Right to vote with the Left.

So no, no Republican Senate should EVER confirm a Democrat for a judicial role, at any level.

See Dem's obstruction of Trump nominees when the Dems were in the minority.

[Greg J]

Yeah, you have to go back to June 1986, when the GOP controlled the Senate, to get that number.

Now, let's consder follow on Dem actions:
Bork, lost 42 - 58
Thomas, won 52-48
Roberts, won 78-22
Alito, won 58 - 42 after then Senator Obama tried to filibuster w/ other Dem Senators
Gorsuch, won 54-45 after Dems tried to filibuster, forcing GOP to finish nuking the filibuster
Kavanaugh, won 50-48
ACB, won 52-48

You jerks poisoned the well with Bork, and have spent your time ever since then poisoning it further.

And now you're crying because your chickens have come home to roost. Poor babies!

[Armchair Lawyer]

If you go back to the first Rehnquist nomination and really look at the voting patterns for SCOTUS judges, a pattern emerges.

Typically "liberal" judges got unanimous or near unanimous confirmations.

"Conservative" judges....got protest votes from Democrats. In increasing numbers. Rehnquist (twice), Bork, Clarence Thomas, Alito. Even Souter was voted against by 9 Democrats. Souter....

Alito broke the camel's back. After that the GOP got tired of the game where they'd give free passes to liberal judges, while Democrats would vote against conservatives.

[Martinned]

Has it occurred to you that that says more about how liberal those liberal justices are relative to how conservative those conservative justices are, rather than about the willingness of senators to vote for them? If you nominate someone who thinks the 14th amendment was a mistake, you shouldn't be surprised if you get a lot of Democratic votes against.

[I Callahan]

he thinks no Democrat should ever be allowed to put anyone on the Supreme Court and the rules should be changed as necessary to bring about that result

Boo fricking hoo. Cry me a river. The catch is that the rules in place are the ones that have existed all along. It's the left that wants to change the rules so that it's easier to get lefty judges in without a majority.

[Krychek_2]

Those have not been the rules all along, as you'd know if you'd bothered to read the comments on this thread.

[Bob from Ohio]

No Senate rule ever has required a vote on any judicial nominee.

[Greg J]

You poor baby.

Exactly WHAT "rules were changed"?

The rule that a Senate controlled by one Party isn't going to approve an SC nomination by a President of teh otehr Party in a Presidential election year?

You know, the Biden - Schumer rule?

No, he followed that one.

The "rule" that when the Senate is controlled by the same Party as the President, they're going to work together to get nominees on the bench?

No, he followed that one.

The rule that it's perfectly acceptable to filibuster nominations of a President you don't like, when you're in the minority?

The Dems created that rule, and then McConnell followed it, like he should.

In every single case, it's been the Democrats who nuked previous tradition, not the Republicans. Every single one.

We'd have more respect for you if would candidly say so rather than make up this nonsense about "rules" that McConnell didn't follow

[NToJ]

It's a bullshit position. But remember that McConnell is not just saying he won't vote to confirm a nominee. He's saying he won't allow a vote of them. It's cowardice, and as invented whole cloth to prevent President Obama from putting forth a qualified nominee who would have received sufficient votes.

[MatthewSlyfield]

" He’s saying he won’t allow a vote of them."

Only in an election year.

[bernard11]

Regardless, Matthew, that's a gigantic difference.

[MatthewSlyfield]

I wasn't suggesting that it was a good and/or smart policy, because I don't think it is, but don't make it out to be broader than it was.

He wasn't saying he would never hold a vote for any Democrat nominee ever, just that he wouldn't do so in an election year.

It's also not unprecedented.

Tyler in 1844-1845 had 5(out of 9 total) Supreme Court nominees who did not get votes. Only three of those were withdrawn.

Fillmore 1851-1853 had 4 nominees to the Supreme Court. 1 was confirmed, 1 withdrawn and the other two not withdrawn never got votes (no action taken by the Senate).

Hayes in 1881, his last nominee to the supreme court got no vote.

[NToJ]

"Tyler in 1844-1845 had 5(out of 9 total) Supreme Court nominees who did not get votes. Only three of those were withdrawn."

Sure, weird year. Seven of those nominations were the same three people. (And all of those three did get a vote.) In fact the only nominee who never got a vote (out of the 9) was John Read.

[Greg J]

Yep, it's a big difference

Democrats lie, smear, make up sexual harassment / rape charges, and generally try to destroy conservatives lives

Republicans say "you're a Democrat, we're not going to support you, but because we're not morally wretched scum, we're not going to lie about you."

Sorry, but you yourself have to be a morally wretched scum to claim that the Democrat way is better

[NToJ]

What better time to allow a vote by Senators then in an election year in which many of them are up for reelection? How are voters supposed to gather information about how their elected representatives will behave, if you rob them of a key data point on the eve of a new six-year term? It's fucking pathetic.

[MatthewSlyfield]

This I can agree with, I think it's a stupid policy.

But it is not without precedent. There are historically, 8 or 9 Supreme Court nominees who received no vote without the nomination being either declined or withdrawn.

[NToJ]

The list is very small and the reasons for no votes are idiosyncratic. Using, say, John Harlan's no vote in 1954 (not a presidential election year) or Butler Pierce's no vote in 1922 (not a presidential election year) to justify or explain Garland's no vote makes no sense. The examples have nothing to do with one another. Then you have to dig back to the 19th century, and you've got Hornblower, Stanley, Stanbery, Micou, Read, none of them election years.

On election years you've got Bradford and Walworth. Walworth actually got a vote on one of his three nominations. I don't have any idea why the Senate sat on Bradford. It's hard to say that it was because of Democratic opposition to a Whig president, since they confirmed Benjamin Curtis by a voice vote within a year of the 1852 election.

[MatthewSlyfield]

I don't think the particular reasoning behind Garland's no vote (or any other no-vote) is relevant. It's politics. The no-votes happen for political reasons. There is absolutely nothing illegitimate about it no matter what the reasons.

[NToJ]

I can't even tell if we disagree wrt "illegitimate". I'm not saying that it was unconstitutional. I'm not saying that Senate Majority Leaders aren't entitled to be fuckwads. I am saying what McConnel did was bad policy, it was bad for democracy, it was bad for voters, and he should not have done that. And he should not do it again. He should put any nominee up for a vote like a man, and convince the American public that the person is not qualified or is not a good choice for the Supreme Court.

[Bob from Ohio]

"It’s cowardice"

Its politics.

He took a gamble and it paid off. Now its a new norm.

[NToJ]

Paid off for who? The voters lost. Is it your position that politics and cowardice are mutually exclusive?

[Armchair Lawyer]

I would say the voters won in the end. The first amendment was defended. Government power and authority were limited.

[NToJ]

Not all of us are as confident as you about what is right or wrong. I still harbor the belief that sometimes the things I think are so, aren’t. Democracy rests on the premise that the people are entitled to be wrong.

By the way, what evidence is there that Garland is a foe of free speech? And the major criticism of liberal justices in my lifetime is that they too often limited “Government power”. Miranda and Roe were wrongly decided. But not in favor of the government.

[Armchair Lawyer]

"I would say" emphasizes my views. But here's a more pointed argument.

The Pandemic saw some of the most drastic, severe, and authoritarian restrictions against religion that I have ever seen in this country. The government can literally draw a line around your Jewish neighborhood and ban any religious services of more than 4 people for more than a year under health laws, while department stores and restaurants are happily open on the other side of the road. Casinos and movie productions are free to operate, but churches are essentially closed because of a pandemic.

Luckily the SCOTUS shot down such an absurd overstepping of freedom of religion. But it was close. Closer than it should've been. And I think Garland would have gone the other way, gutting freedom of religion so thoroughly, it may as well not exist.

That's just my view of course. And if you don't care about religious rights, then perhaps you wouldn't mind gutting religious freedoms.

[Josh R]

Or perhaps in some cases, religious conduct was not targeted and only incidentally impacted by neutral and generally applicable regulations which (in my view) should apply. But perhaps you think religious conduct should be exempt.

[Armchair Lawyer]

Hard to say it was only "incidentally impacted" when places of worship are specified by the closure orders.....

[Bob from Ohio]

"it’ll just add fuel to next year’s Senate races."

Current belief is that more GOP voters are motivated by the supreme court than Dem voters. So a focus on the court is a net vote gain.

Some people think the Kav fiasco worked to the GOP's benefit in Senate elections in 2018. Increasing one majority while losing the other house majority is unusual but who knows.

[Brett Bellmore]

Well, McConnell is right: They didn't actually do anything out of the ordinary in the case of either Garland or Barrett. I looked up the record at the time.

Presidents basically always nominate to fill a vacancy, regardless of how close it is to an election.

If the Senate is of the same party, they'll basically always consider, and usually confirm, the nominee. Again, no matter how close it is to an election, or even after.

If it's an election year, and the Senate is of the opposing party to the President, they virtually never confirm, and usually just ignore, the nomination.

[KCar]

Yep. Politicians should explain it just like this instead of making some other BS excuse about will of the voter or whatever.

[Krychek_2]

That would come as a great surprise to both President Reagan and Justice Anthony Kennedy, whom a Democratic Senate confirmed to the Supreme Court in an election year.

[Life of Brian]

Justice Anthony Kennedy, whom a Democratic Senate confirmed to the Supreme Court in an election year.

And boy howdy, didn't that work out well for them?

But seriously, why do you think one exception in the past 80+ years somehow disproves "virtually never"?

[NToJ]

"But seriously, why do you think one exception in the past 80+ years somehow disproves “virtually never”?"

Yes. In the last 80 years, the data set of President nominating in face of opposition Senate is like 4-5, and one of them is voted in, that would disprove "virtually never". And what about Stevens?

That's the problem with this whole discussion. Y'all are taking tiny data sets and trying to create trends. Setting aside that you can't even get that part right, rolling two heads in a row does not mean heads are "virtually guaranteed".

[Life of Brian]

That’s the problem with this whole discussion. Y’all are taking tiny data sets and trying to create trends.

Not for nothing, but the rest of "y'all" are taking those same tiny data sets and trying to say they stand for "rules," "customs," or whatever they think is embarrassing enough to get them what they want today -- and coming up with convoluted explanations for the exceptions -- rather than acknowledging the blissfully simple and eternally true fact that politics is ultimately about power, and they presently don't have it. Cf. Obama's "I won."

[NToJ]

Am I the one saying that? But the "customs" that I'm focused on is a President nominates a candidate and the Senate votes on them. Note that the data set on that custom is a good bit longer than the arbitrary one y'all are creating by limiting it to nominees in election years. You can just make it simple. How many nominees named Garland had gotten a vote prior to 2016? Zero. McConnel was just following tradition then, I suppose.

"...rather than acknowledging the blissfully simple and eternally true fact that politics is ultimately about power, and they presently don’t have it."

Why do you think McConnell didn't just say that, then? Because he knew it wouldn't sell to voters. So he either agreed with you in which case he fucking lied, or he doesn't agree with you.

[Life of Brian]

But the “customs” that I’m focused on is a President nominates a candidate and the Senate votes on them.

Except when they don't. Because sometimes they won't. Which sorta kills the whole "custom" thing.

As you've said, the data sets are all public. So stop pretending they're squeaky clean in favor of what you want to happen this particular time.

So he either agreed with you in which case he fucking lied, or he doesn’t agree with you.

Politician lied. News at 11.

Oh, wait, he FUCKING lied?!???? Get me my fainting couch, lads!

[MatthewSlyfield]

Why is confining the analysis to just the last 80 years valid?

I have no idea how they line up with presidential election years, but if you go all the way back to the beginning in 1789, there are 8 or 9 supreme court nominations that received no vote without the nomination being either declined or withdrawn.

[NToJ]

"Why is confining the analysis to just the last 80 years valid?"

It's not! It doesn't matter if you take it back to the beginning of the republic.

[Greg J]

The Democrats confirmed him only after nuking the system and lying about Bork in order to stop his nomination

So no, you can't take "hey, we eventually let the seat that was opened up in June of 87 get filled in 88, after we destroyed the 'qualified nominees get approved' rule" and take it as pro-Democrat result

[Josh R]

Until Barrett, no nominee for a vacancy that occurred less than 150 days before the election had even been confirmed.

[NToJ]

John Clarke was nominated within 150 days before the election and was confirmed by a voice vote ten days after his nomination. I suppose you could include Abe Fortas but he was just being promoted to take the Chief Justice spot, and Homer Thornberry's nomination became moot when Fortas's promotion was filibustered. So, Bradford Edward. Then Reuben Walworth and John Spencer (who were both also nominated outside the 150 day window, and later renominated).

Who am I missing?

[MatthewSlyfield]

You and Josh R are talking two vary different things.

You are talking about justices confirmed who were nominated within 150 days of the election.

Josh R is talking about nominations to fill a vacancy where the vacancy occurred within 150 days of the election.

These two sets would necessarily overlap, but they are not identical.

The way you define the target set is broader and thus the cases of justices confirmed that you point to may not fall within the target set as defined by Josh R.

You probably have the better argument here. The way Josh R defined the target set, I would expect it to be very small, no more than half a dozen in the entire history of the US, and mostly cases where a sitting justice died.

[Josh R]

Prior to Barrett, there were five cases. None of the nominees were confirmed even though In two of them, the Senate and President were of the same party. Perhaps that's not enough cases to establish a firm precedent, but it's Brett who is arguing there is a firm precedent to the contrary. I am merely pointing out there is another factor he overlooked that undermines his argument.

[Greg J]

And both the ones from the same Party were confirmed by that Senate after the election, correct?

Because it was earlier, travel was more difficult and slower, and the Senate didn't have time to get back to do the vote before the election, correct?

You can whine all you want. The Democrats nuked the rules when they rejected Bork, and nuked them against when they filibustered Estrada.

You established the new rules. now you get to live with them, and lose with them. And if you don't like that, you shouldn't have screwed with the old rules

[Josh R]

One (Fortas) was rejected and one (Chase) was nominated (and confirmed) only after Lincoln was reelected.

[Greg J]

1: Fortas was rejected by Democrats, because he was a liar and a crook
Which is why he resigned the next year

2: He wasn't being nominated for a seat on the Court, he already had one. He was nominated to be CJ

3: The seat Chase was nominated for didn't open up until after the Senate was out of session. Which is the only reason Lincoln didn't fill the seat before the election: hew couldn't

So, you've got two cases:
For one, the Senate wasn't in session
For the other, the guy was rejected because Democrat Senators were opposed to him, and for good reason

IOW, you've got jack

[David Nieporent]

What rule exactly was nuked by the rejection of Bork?

[Greg J]

The rule that any qualified nominee gets approved.

So, you deny that was the rule?

Then what rule was violated by the GOP rejecting Garland?

[NToJ]

"Josh R is talking about nominations to fill a vacancy where the vacancy occurred within 150 days of the election."

This is getting pedantic. I was talking about Clarke. Charles Evan Hughes's vacancy occurred on June 10, 1916. That's exactly 150 days of the 1916 election. Clarke was nominated for that vacancy within 150 days of the 1916 election. If he really meant 151 days it's obvious that length of time was intentionally selected to avoid the counterexample of Clarke, which is shit.

[Josh R]

I thought I said less than 150 days. If that's too convenient, eliminate Fortas at 147 days (or add in Clarke) and we have four cases (six cases), all of which (all but one of which) were not confirmed and one (two out of three) in which the Senate was of the same party.

The bottom line is Brett's claim does not factor in vacancies very close to the election for which precedent does not tell us how strong to weight the political party who controls the Senate.

[Sarcastr0]

That's not how it has been, nor how it should be.

I don't see why it's okay if McConnel declares that's how it is.

Again, formally legal is not the same as legit.

[Brett Bellmore]

"That’s not how it has been, nor how it should be."

What's that saying? "You're entitled to have your own opinions, but not your own facts."?

That is absolutely how it has been. That's a fact. "How it should be" is opinion, which you're entitled to have, though I'd disagree with you.

[NToJ]

But you don't have the facts right.

[Brett Bellmore]

I have literally gone over the entire, over 200 year, record of Supreme court nominations. Just as MatthewSlyfield did above.

And it absolutely is the truth: Presidential election year nominations when the Senate is held by a different party than the President's are virtually always defeated, and usually don't get votes.

That's a brute fact, which anybody who wants to can confirm by looking at the public record.

[NToJ]

That's just not true. That's not true whether the election year is November 8th to November 8th, or whether it's January 1st to November 8th. And you're right, the record is public and available. And you're just wrong about it.

[I Callahan]

Then point out how he was wrong. You're just asserting that he's wrong.

[NToJ]

He's wrong because the data set of "If it’s an election year, and the Senate is of the opposing party to the President" is so small that even one counterexample would make it impossible for it to be "virtually never" that a confirmation happens, and a confirmation has happened (Melville Fuller) under the conditions stipulated.

I've already wasted enough time counting up the examples, and I'd just as soon have Brett fact-check his own claim before I waste more time doing it for you, again.

[MatthewSlyfield]

I looked at the list of justices.

Going by calendar year, I get:

12 vacancies that started in a presidential election year, two of which were after the election

11 confirmations of justices in a presidential election year, 5 of which filled vacancies that started the prior year.

Which leaves 6 vacancies that started in an election year that were not filled until the next year.

I see a mixed bag with no solid rule either way.

[NToJ]

This is what I see, too.

[I Callahan]

formally legal is not the same as legit.

Yes, it is. It's the only consideration.

[David Nieporent]

No. Norms matter.

[NToJ]

"If it’s an election year, and the Senate is of the opposing party to the President, they virtually never confirm, and usually just ignore, the nomination."

Given the tiny size of the overall data set, Melville Fuller ruins this case. I suppose you could throw in Oliver Ellsworth and Samuel Chase, too.

[Brett Bellmore]

Two of your examples were nominated by George Washington, who is kind of unique among Presidents in that essentially everyone admired him. (We could easily have ended up a constitutional monarchy if Washington hadn't turned down the position.) And it was before our party structure was fully in place.

[NToJ]

Ok, since you're the one who wants to assert "virtually never" just tell us then. Define "election year" precisely, and then give us a list of the entire data set. It's not going to be long enough to justify "virtually never".

[I Callahan]

George Washington didn't belong to a political party. Which makes your argument null. The point was whether a president gets his USSC nominees approved by the opposing party in an election year.

[NToJ]

George Washington didn't nominate Melville Fuller. What's your answer?

[Ben_]

If McConnell needed a justification, the election irregularities and the attempts to stonewall investigations of the election justify delaying until after a cleaner, more lawful election.

[Rev. Arthur L. Kirkland]

Deluded, bigoted "stolen election" clingers are among my favorite culture war casualties.

Open wider, Ben.

[DaivdBehar]

All Dems are cheaters. When the purges begin, start shopping the Caracas apartment, cheater.

[wreckinball]

Have you found an appropriate gay sex site yet? Ask Tony

[bevis the lumberjack]

WHAT election irregularities? More than six months later and.....nothing.

[Ben_]

Ignoring state laws in Pennsylvania and Wisconsin and elsewhere. Mailing ballots to people who didn’t request them. Turning off signature verification. Various election machine shenanigans. Breaking chain of custody on ballot lots so totals can’t be verified. Failing to investigate fraud allegations. etc. etc.

Run an election according to the law and stop trying every scheme under the sun to cheat if you want elections to be considered legitimate.

[Sarcastr0]

Court cases you don't like aren't irregularities.

[De Oppresso Liber]

Even GOP Senators are admitting that the evidence never materialized. You cultists are getting so divorced from reality.

If they brought back the Blue Collar Comedy Tour, it would go something like:

You might be in a cult of personality when...

[Bruce Hayden]

And, yes, I know that you believe that the AZ Senate Audit is “silly “. At least they are (triple) hand counting the ballots, which beats all of the “recounts”to date. And are looking at the ballots closely under various light sources, testing them for weight and bamboo content etc. but, the operant word from all that is apparently “silly “.

[De Oppresso Liber]

The operant word is silly. Just ask any, literally any professional auditor.

https://www.azcentral.com/story/news/politics/elections/2021/06/01/professional-auditors-take-a-look-at-arizona-senate-audit-of-maricopa-county-2020-election/5212065001/

[Krychek_2]

I would support a change in the Senate rules so that any nominee who has not received a vote within a reasonable period of time -- say, six months -- is deemed confirmed. That way, if there is a specific reason to deny confirmation to a nominee, the Senate has plenty of time to do it, but they can't obstruct just to obstruct.

[MatthewSlyfield]

If you really support that, it should be done as a constitutional amendment.

If you just do it as a Senate Rule, the Senate could undo it at any time on a whim.

[Krychek_2]

The Constitution is silent on the mechanics of how the Senate gives its advice and consent, so a rule change would be all that would be necessary. You're right, it could be changed later, but as long as it lasted it would still be an improvement over pure obstructionism.

[MatthewSlyfield]

I wasn't suggesting it couldn't be done as a Senate rule, but given the current political climate it would be foolish, bordering on delusional. to expect such a rule to last for any significant amount of time.

[Krychek_2]

Oh, it's not going to happen at all since senators love being able to obstruct. I just think it would be good policy.

[Life of Brian]

Not being a Senate parliamentarian in my spare time, it wouldn't surprise me if a simple majority could delay a vote indefinitely. So that would create the perverse result where a president could nominate a super-controversial candidate and a same-party majority of 51 could delay the 6 months to get the auto-confirmation. Basically the same result as nuking the filibuster -- just would take a bit longer.

[Krychek_2]

But you're talking to someone who opposes obstructionism on principle. If the president and a majority of the Senate think that someone should be on the Supreme Court, that's sufficient to put them on the Supreme Court.

There are some issues so important as to require supermajorities. A routine Supreme Court confirmation is not one of them.

[MatthewSlyfield]

No, such a perverse result would not happen. Confirmation itself, as is, only requires a simple majority.

The only 2/3rds requirement in the confirmation process was a cloture vote to end a filibuster. But since the filibuster has been eliminated for all judicial nominations, that's a non-issue.

No, the perverse incentive with a rule of silence = confirmation would be a case where the President and the Senate Majority are the same party, but the Senators from the Presidents own party oppose the nominee. Then there would be a perverse incentive for the Senate majority leadership to block a vote.

[Life of Brian]

But since the filibuster has been eliminated for all judicial nominations, that’s a non-issue.

Temporarily, through another cute trick. Continuing to pile on end-runs just removes all political pressure to formally change the rule if that's what everyone wants. My take is that it ultimately isn't -- folks are just working through the face-slapping contest that ensued from Harry Reid's initial bit of too-cleverness.

[Brett Bellmore]

Yeah, so?

[David Nieporent]

I do not see how it is "perverse" to confirm someone who was nominated by the president and supported by 51 percent of the Senate. There may be arguments as to why supermajority rules (which do not currently exist for nominations) are good policy, but that doesn't make simple majority decisionmaking "perverse."

[Brett Bellmore]

I'm actually cool with that. Good idea, which I've proposed myself in the past.

I said at the time that I thought Garland should have gotten a vote, and been voted down. I just wasn't prepared to pretend that was the usual practice for opposing party nominees in election years.

[Bob from Ohio]

"change in the Senate rules"

Not going to ever happen. Neither party would want that.

[Krychek_2]

And the fact that neither party wants it may be prima facie evidence that it's a good idea.

[MatthewSlyfield]

The rule I would favor is every nominee(not just judicial) gets a vote on the full floor of the Senate.

The relevant committees can meet and vote on a recommendation to the floor, but no hearings that involve calling witnesses, and the committee has no say in the scheduling of the floor vote on the nominee.

This is how it used to be done. The first committee hearings on a nominee didn't happen until the early 20th century and such hearings did not become routine until after WWII.

[NToJ]

Agree.

[John F. Carr]

At least he's telling a consistent story now.

[Moderation4ever]

I cannot help but think that Senator McConnell's action move toward creating a court that acts by political opinion rather than law. When a President has a friendly Senate they will appoint the candidate of their choosing. When the Senate is controlled by the opposition party the President would look to a candidate favoring his ideas but who can be a consensus pick. Senator McConnell's approach directly opposes this idea and will lead to more divided opinions. While 5 to 4 or 6 to 3 wins it does not have the effect of reinforcing the idea of law that a opinion with a mix group of justices. The Roe vs Wade decision can be over ruled by a narrow majority but it will not hold the same power as the case that was originally decided 7 to 2.

[Brett Bellmore]

"I cannot help but think that Senator McConnell’s action move toward creating a court that acts by political opinion rather than law."

LOL! It's been that since FDR cowed the Court with his threat of Court packing, and they stopped upholding the Constitution when it got in the way of his New Deal power grabs. Can't unbreak that egg.

McConnell isn't doing anything new here, which he has pointed out, and I find the record confirms. He's just following past practice.

The fact is there's no such thing as a consensus pick for the Supreme court anymore. The two major parties have disjoint ideas of what constitutes minimal qualifications to be on the Court.

[Bob from Ohio]

"While 5 to 4 or 6 to 3 wins it does not have the effect of reinforcing the idea of law that a opinion with a mix group of justices."

Tell that to Tony Kennedy and gay "marriage".

"The Roe vs Wade decision can be over ruled by a narrow majority but it will not hold the same power as the case that was originally decided 7 to 2."

Power? No decision since Dred Scott has invoked more opposition.

[De Oppresso Liber]

"No decision since Dred Scott has invoked more opposition."

And yet, 62% of women and 56% of men say tha abortion should be legal in all or nearly all cases.

"Opposition" being violent and vocal, but never a majority opinion. Sort of sums up all of the conservative culture war issues, doesn't it?

[Bob from Ohio]

Majority probably approved Dred Scott too.

"Most" is undefined so useless. Its asked that way to increase the pro-abortion side.

[De Oppresso Liber]

Lol. "Most" most certainly has a definition, and I encourage you to look it up.

[Bob from Ohio]

Do you think the same number of people favor an abortion at 3 weeks as at 30 weeks?

[De Oppresso Liber]

I think that most people are pro choice.

[De Oppresso Liber]

https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/

[Moderation4ever]

Dred Scott was never overturned and so it is difficult to assess opposition to Dred Scott. We look at Dred Scott today through a historical prospective.

My point was not about a specific case but rather about the effect of only approving justices when the President and the Senate are controlled by the same party. This means that justices will be more political and less judicial. This overall will mean that SCOTUS decisions will be less respected. The decision will be seen as less about the Constitution and more about politics.

[bernard11]

Well, McConnell did pretty much kill Breyer's reason for not wanting to retire.

[Brett Bellmore]

Breyer's reason for not wanting to retire is that he likes being a Supreme court Justice.

[Bob from Ohio]

"Breyer’s reason for not wanting to retire"

You know the reason? You must have spoken to him.

[Darth Buckeye]

McConnel is doofus for saying what he did. He should be more like Bill Clinton. Say comforting things while planning the exact opposite.

[Whistling Willie]

I've always thought that in 2016, the Senate Republicans (who constituted a majority) should have gone through all the niceties (office visits with the nominee, hearings at which supporters and opponents would speak, having the nominee testify and answer questions), and then held a vote whereby Merrick Garland's nomination would have been defeated.

A pre-ordained outcome which, nevertheless, would have respected the process.

Whistling Willie

[Brett Bellmore]

I suspected at the time that they meant to keep the Garland nomination "live", so that if it looked certain Clinton was going to win, they could quickly confirm him to deny her the opportunity to nominate somebody to the seat.

Just because it's normal practice to not give nominees under that situation votes doesn't mean it's admirable.

[NToJ]

Stop acting like it's "normal practice". It's not. You might as well say it was normal practice for the Senate not to confirm a nominee named Garland.

[Bob from Ohio]

Its normal now.

[NToJ]

It's normal now for Mitch McConnell to not hold a vote on a demoratic nominee in a presidential year. Because he's an asshole. This norm can and will get reversed.

[Sarcastr0]

Nihilism. If you got your way, our Republic would be over.

[wreckinball]

Agree

[wreckinball]

If Garland is any indication of what's coming that should be a big nope

[Bruce Hayden]

Merrick Garland is reason #1 for maintaining the Senate rules as they are. We were told that he was a moderate. But see his true character when, as AG, has moved the focus of the DOJ from fighting domestic terrorism to fighting the terrorism of Republicans backing Trump, and giving AntiFA and BLM terrorists Get Out of Jail Free cards. His rabid partisanship makes even Lynch look almost moderate by comparison.

This is what McConnell knows - that preventing the next Merrick Garland on the Supreme Court is highly popular with many Republicans. They realize the bullet that they dodged last time around.

[I Callahan]

I only have one response to the whining lefties in the thread:

TFB

To the victors go the spoils. You couldn't get a solid majority, you don't get what you want.

[Rev. Arthur L. Kirkland]

See you down the road apiece, clinger. I'll recognize you by the whining.

[Sarcastr0]

That's not really how to be in a republic. Though reading your comments, I'm not sure you really want to live in one.

[Rev. Arthur L. Kirkland]

What matters is whether Republicans figure a way to make racism, misogyny, gay-bashing, xenophobia, superstition, and backwater ignorance more -- rather than increasingly less -- popular in modern America.

If they do, nothing else -- including Sen. McConnell's hardball maneuvers and preferences -- matters.

If they don't, nothing else -- including gerrymandering, voter suppression, or our system's structural amplification of hayseed votes -- matters.

It's like first-year grades. Nothing else matters.

So good luck, clingers, with trying to reverse the half-century tide of that culture war.