Cocaine Mitch: Hell Yes, We'd Fill a SCOTUS Vacancy Next Year

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Posted: Sep 04, 2019 2:15 PM
Cocaine Mitch: Hell Yes, We'd Fill a SCOTUS Vacancy Next Year

Appearing on Hugh Hewitt's radio show this week, Senate Majority Leader Mitch McConnell weighed in on two controversies involving the federal judiciary and the political process.  First, he blasted Senate Democrats who openly threatened the Supreme Court with 'restructuring' if the justices declined to heed partisan liberal demands regarding a specific case.  The Court must "heal" itself, a group of Senators wrote in a stunningly brazen amicus brief, or risk future compulsory "healing" at the hands of another branch of government.  McConnell bristled at his colleagues' tactics, slamming this attempt at ideological blackmail:

[The amicus brief] was signed by a number of [Democrats] threatening the Supreme Court by claiming it is not 'well,' which is utter nonsense, and also threatening to pack the Court if the Democrat signers of the letter didn’t get a particular outcome in a case that they filed an amicus brief in. Look, there’s nothing wrong with filing an amicus brief. I’ve done that. Never in one did it cross my mind that it was a good idea to threaten the Court that if they didn’t decide the way I wanted to, we’d expand the number. All 53 of my members, every single one of them, wrote a letter to the Court telling them not to be intimidated by these kinds of suggestions, and that we supported judicial independence.

Indeed they did. Here's a portion of that letter, signed by the entire Senate GOP conference:

Judicial independence is under assault.   Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this Court with more justices in order to further their radical legislative agenda.  It’s one thing for politicians to peddle these ideas in Tweets or on the stump.  But the Democrats’ amicus brief demonstrates that their court-packing plans are more than just pandering.  They are a direct, immediate threat to the independence of the judiciary and the rights of all Americans...We are deeply concerned by our colleagues’ amicus brief and the ideas it promotes.  We take no position on the underlying Second Amendment question nor on the mootness issue currently before the Court.  But judicial independence is not negotiable.  We will brook no threats to this fundamental precept of our constitutional structure...For our part, we promise this:  While we remain Members of this body, the Democrats’ threat to “restructure[ ]” the Court is an empty one.  We share Justice Ginsburg’s view that “nine seems to be a good number.”  And it will remain that way as long as we are here.

Elsewhere in the interview, McConnell affirmed that he plans to see to it that by the end of calendar year 2020, the Republican Senate majority will not leave "a single vacancy behind" in the entire federal judiciary. Pressed by Hewitt about whether that would also apply to a hypothetical Supreme Court opening that could materialize next year, McConnell was unequivocal:

Hewitt: The majority didn’t want to fill that vacancy in 2016. The majority would want to fill a vacancy in 2020. Is that a fair characterization of your position?

McConnell: Absolutely. You’re absolutely correct. In fact, you have to go back to 1880 to find the last time, back to 1880s to find the last time a Senate of a different party from the president filled a Supreme Court vacancy created in the middle of a presidential election. That was entirely the precedent. That was confirmed again by Joe Biden in ’92, by Harry Reid and Chuck Schumer in 2007. There were not vacancies existing at the time, but that was the time when the other party controlled the Senate. There was a Republican in the White House. They were quite forthcoming about that. There was nothing I did that was, would not have been done had the shoe been on the other foot had there been...a Republican president and a Democratic Senate. So look, they can whine about this all day long. But under the Constitution, there is co-responsibility for appointments. The President makes the nomination, and the Senate confirms. We are partners in the personnel business up to and including the U.S. Supreme Court.

Hewitt followed up, asking whether the entire Senate GOP majority would be on board for filling a SCOTUS vacancy in an election year (at least one influential Republican Senator has expressed qualms about this in the past, given the Merrick Garland episode). The Majority Leader's response: "Absolutely."  If it comes to that -- and this recent health scare once again raised the prospect in a very non-hypothetical way -- Democrats will shriek about hypocrisy.  But McConnell, who is a smart tactician and extremely careful with his words, carved out this breathing room back in 2016, during the Garland flap.  Pay attention to the subtle caveat he embeds into his answer to a question from Bret Baier at the time:

"You'd have to go back to 1888 -- Grover Cleveland in the White House -- to find the last time a Senate controlled by the opposite party of the president confirmed a justice in a presidential election year."

Wily 'ole Cocaine Mitch was hedging his bets even back then, on the off chance that Trump somehow won and maintained a Republican Senate majority.  And here we are.  Different fact set, different precedent, McConnell was arguing, without drawing too much attention to a distinction that will factor heavily in his pushback against "flip flop" charges that could arise in 2020.  And those charges will be extremely heated:


First, as McConnell explained above, the Garland "precedent" isn't what Axelrod thinks it is.  Second, as Axelrod's former boss liked to say, "elections have consequences."  Said elections include 2018, when Republicans grew their Senate majority in an otherwise blue year, thanks (explicitly, in part) to the Supreme Court issue.  Third, it's rich to hear anyone on the Left wring their hands about a SCOTUS fight 'tearing this country apart' after what the Democrats did just last year.  I'll leave you with good news for lefties desperate to dethrone McConnell as Majority Leader starting in 2021:


Losing Manchin would have made Senate Democrats' prospects much tougher, requiring them to net at least four, if not five, Senate seats in 2020 to win back control.  Thanks to this decision, their math is more feasible.  It's not a slam dunk by any stretch, of course, but it's hardly out of reach, either.  Conservatives need to pay close attention to these races, especially in places like Colorado, Arizona, Georgia, and even Maine (and not screw up Alabama again).