Senate Majority Leader Mitch McConnell, speaking at a luncheon on Tuesday, made clear what would happen if a Supreme Court vacancy should materialize in the midst of the 2020 election season: "Uh, we'd fill it."
Although his comment drew laughter and support from those in attendance at the Paducah Chamber luncheon, progressives swiftly accused McConnell of partisan hypocrisy, based on the treatment of former Barack Obama Supreme Court nominee and D.C. Circuit Court of Appeals chief judge Merrick Garland.
Obama nominated Garland to replace the late Justice Antonin Scalia, but McConnell and Senate Republicans refused to hold a hearing or vote on his nomination, citing the imminent 2016 presidential election.
"Yeah, the reason I started witih the judges — as important as all ther other things are that we're talking about — if you want to have a long-lasting positive impact on the country, everything else changes," McConnell began. "I remember during the tax bill, there were people agonizing over whether one part of the tax bill was permanent or not. And I said: 'Look, the only way the tax bill is permanent, depends upon the next election. The next election. Because people have different views about the taxes in the two parties and approach it differently when they get in power."
McConnell added: "What can't be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law. That's the most important thing for the country, which cannot be undone."
Speaking to Fox News last year, McConnell suggested his stance was not hypocritical — because in 2020, Republicans would control both the White House and the Senate, unlike Democrats in 2016, who controlled only the White House. On Tuesday, a McConnell spokesperson doubled down on that reasoning, saying the situations are not comparable.
"You have to go back to 1880s to find the last time a Senate controlled by a party different from the president filled a vacancy on the Supreme Court that was created in the middle of a presidential election year," McConnell told Fox News.
But some commentators and Democrats were not convinced. "McConnell Says He’d Confirm an Election-Year Trump Supreme Court Nominee Because He’s a Republican and Obama Wasn’t," read a column in Slate.
Added Senate Minority Leader Chuck Schumer, D-N.Y., on Twitter: "Senator McConnell. is a hypocrite."
"Senator McConnell's statements further damage and undermine the Supreme Court at a time when its standing has been significantly diminished in the eyes of the public," Kristen Clarke, president and executive director of the nonpartisan Lawyers’ Committee for Civil Rights Under Law, told Fox News in a statement. "His naked political gamesmanship threatens to further erode the integrity of our nation's highest court. McConnell's comments are not only reprehensible but a reminder about the unprecedented and unprincipled tactics used to fill the seat currently occupied by Justice Gorsuch."
Clarke continued: "For civil rights lawyers who are witnessing unrelenting attacks on constitutional rights every day, this is no laughing matter."
Court watchers have eyed a handful of potential vacancies for months. Justice Ruth Bader Ginsburg, 86, underwent a pulmonary lobectomy at Memorial Sloan Kettering Cancer Center in New York earlier this year after two nodules were discovered in the lower lobe of her left lung. The discovery came during tests after she fractured several ribs during a fall in November.
"For civil rights lawyers who are witnessing unrelenting attacks on constitutional rights every day, this is no laughing matter."
— Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law
Both nodules removed during the lung surgery were found to be malignant, but pre-surgery scans indicated no evidence of disease elsewhere in the body, the Supreme Court said in a statement at the time.
The Trump administration has significantly transformed the Supreme Court with the confirmations of Associate Justices Neil Gorsuch and Brett Kavanaugh. But federal appellate and trial courts have also seen major changes, as Republican-appointed judges are nearing a majority for the first time in decades on the long-liberal Ninth Circuit Court of Appeals.
In all, more than 100 Trump-nominated judges have been confirmed to the bench — including 63 district court judges and 37 circuit court judges. In 2013, then-Senate Majority Leader Harry Reid, D-Nev., eliminated the filibuster for federal judicial nominees to courts other than the Supreme Court, meaning Republicans needed just a simple majority, and not the 60-vote supermajority required under filibuster rules, to confirm a nominee to those courts.
Republicans, once in control of the Senate majority, later eliminated the filibuster for Supreme Court nominees.