By Elad Hakim
There’s a possibility that President Donald Trump will have the opportunity to fill another Supreme Court vacancy before the 2020 elections.
According to reports, Senate Majority Leader Mitch McConnell (R-Ky.) would support the president’s nomination, even if it occurred during an election year. This is in contrast to his stance during the Obama administration.
Speaking at an event earlier this year, McConnell was asked what his position would be on filling a Supreme Court vacancy if a justice were to leave the court in 2020.
In response, McConnell stated, “Oh, we’d fill it.” In light of these comments, many Democrats blasted McConnell for his alleged hypocrisy.
Democrats, of course, were referring to McConnell’s position in 2016 with respect to then-President Barack Obama’s nominee to replace the late Antonin Scalia on the high court.
As reported in the St. Louis Post-Dispatch:
“McConnell, back in 2016, refused to even meet with Merrick Garland, who was then-President Barack Obama’s nominee to replace the late Antonin Scalia on the Supreme Court. Even though Scalia had died in February 2016, McConnell argued that an outgoing president—even one with 11 months left in office—couldn’t make a court pick due to its lifetime tenure.”
According to many Democrats, McConnell’s willingness to fill a potential vacancy prior to 2020 directly contradicts his position in 2016. This position isn’t entirely without merit. On the one hand, McConnell objected to Garland’s nomination in 2016 due to an upcoming election. On the other hand, he would happily fill a potential vacancy prior to the 2020 election.
The dichotomy between these two positions appears to represent a clear-cut case of hypocrisy. In addition, McConnell’s efforts to justify his current position versus that in 2016 will be deemed unconvincing by many of his critics.
As reported in the Dispatch:
“The McConnell team are trying to suggest that he has been entirely consistent and that the 2016 situation and a potential 2020 vacancy are very different because, in 2016, the President’s party didn’t control the Senate, whereas they do now.”
McConnell appears to be saying that the existence of a Republican-controlled Senate and a Republican president makes 2020 vastly different than 2016, when the president was a Democrat and the Senate was in Republican hands. McConnell’s point isn’t without historical support.
“As historians have noted, only once in U.S. history—1888—did the Senate act before Election Day to confirm a justice nominated in the last year of a presidential term when the president and the Senate majority were from different parties,” according to The Salem News.
Had this been McConnell’s sole argument, it would have allowed him to save face, despite his current position. However, some of his other comments in 2016 seemingly promoted the position that a president shouldn’t be permitted to make a nomination for a job that carries a lifetime appointment during a contested presidential election.
Therefore, it’s not surprising that some would consider McConnell’s change in approach as hypocritical.
Despite the possibility that some will try to tarnish McConnell’s good name, McConnell’s position from a constitutional perspective is entirely sound. According to Article II, Section 2, Clause 2 of the U.S. Constitution, which governs the nomination and appointment of Supreme Court justices:
“[The President,] by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. …”
As is glaringly clear, nothing in this language compels the Senate to hold a hearing on a Supreme Court nominee. As Adam White, resident scholar at the American Enterprise Institute, previously noted:
“But nowhere does the Constitution say that the Senate is required to act on the president’s nominations. The Framers certainly didn’t understand the Senate to bear such an obligation. And the Framers who drafted that document certainly didn’t say that the Senate bore such an obligation.”
As a matter of fact, when Harry Reid was the Senate minority leader, he agreed with this interpretation, stating:
“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote. … The Senate is not a rubber stamp for the executive branch.”
Reid, like White, is correct. There is no obligation to give a Supreme Court nominee a vote or a hearing. Therefore, McConnell’s current position with regard to filling another Supreme Court vacancy is entirely lawful and in line with Article II. Whether it is “hypocritical” is an entirely different matter and is up for debate.
If the opportunity presents itself, McConnell rightfully seems less concerned with “labels” and more concerned with helping to shape the Supreme Court for the foreseeable future.
Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.
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