GOP senators’ reversals on precedent
They used electionyear rationale to block Obama’s high court nominee in 2016. Now, they are backtracking.
Within hours of Justice Ruth Bader Ginsburg’s death Friday evening, Senate Majority Leader Mitch McConnell (R-Ky.) announced that President Trump’s nominee would get a vote.
Senate Minority Leader Charles E. Schumer (DN.Y.) put out a statement as well. “The American people should have a voice in the selection of their next Supreme Court Justice,” he tweeted. “Therefore, this vacancy should not be filled until we have a new president.”
If those words sound familiar, it’s because Schumer was quoting the statement McConnell released on the day Justice Antonin Scalia died. Soon after Scalia’s death was announced Feb. 13, 2016, McConnell said President Obama’s Supreme Court nominee would not advance.
In 2016, many Republicans argued that allowing a vote on Obama’s Supreme Court nominee during an election year would break precedent. They argued that the American people deserved a chance to have their say. Many Republicans referred to comments thenSenate Judiciary Chairman Joe Biden made as President George H.W. Bush prepared for his reelection bid against Democrat Bill Clinton. Biden argued that if a justice resigned before the election, the next president should fill the seat.
“It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over,” Biden said in a June 1992 speech that would be echoed by Republicans in the same chamber 24 years later.
On Feb. 23, 2016, Republicans on the Senate Judiciary Committee — including Sens. Lindsey Graham of South Carolina, Charles E. Grassley of Iowa and John Cornyn and Ted Cruz of Texas — informed McConnell they would not hold hearings for any Obama nominee. The senators wrote that the American people had “an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the court will take over the next generation.
“Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year,” they wrote in their letter. “And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”
Of the 11 members who signed the letter, seven are still in the Senate and six — Grassley, Graham, Cornyn,
Cruz, Mike Lee of Utah and Thom Tillis of North Carolina — remain on the committee.
History is repeating itself, but several Senate Republicans are not. Here’s what McConnell and other key Republicans said in 2016 about election-year Supreme Court picks and what they’ve said since Ginsburg’s death.
Senate Majority Leader Mitch McConnell
Feb. 13, 2016: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
March 16, 2016: “The decision the Senate made weeks ago remains about a principle and not a person,” McConnell said on the Senate floor. He said he personally told Obama the Senate would “continue to observe the Biden rule, so that the American people have a voice in this momentous decision.”
May 28, 2019: McConnell was asked what he’d do if a seat on the Supreme Court opened up next year. “We’d fill it,” he said.
Sept. 18, 2020, the night of Ginsburg’s death: “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” McConnell said in a statement. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Sen. Lindsey Graham
Graham was elected chair of the Senate Judiciary Committee in January 2019, after Grassley gave up the position to chair another panel.
March 10, 2016: “I want you to use my words against me,” Graham said during a
Judiciary Committee meeting. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
Oct. 3, 2018: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” Graham said onstage at a festival hosted by the Atlantic magazine. When his interviewer pointed out he was on the record, Graham added: “Hold the tape.”
Sept. 19, 2020: Graham said that in light of Nevada Sen. Harry Reid’s decision to end the filibuster for most nominations and what he described as Democrats’ and the media’s effort to “destroy the life of Brett Kavanaugh” and hold the seat open, he would “support President Trump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.” Reid ended the filibuster on nominations in 2013, five years before Graham’s 2018 comment; Justice Kavanaugh’s Supreme Court nomination was confirmed Oct. 6, 2018.
Sen. Charles E. Grassley
Grassley, chairman of the Judiciary Committee in 2016, has commented on Ginsburg’s death but not on how Republicans should proceed with filling the seat.
Feb. 13, 2016: “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year,” he said in a statement on the day Scalia died. “Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the
American people who will elect a new president to select the next Supreme Court justice.”
March 16, 2016: After Obama nominated Circuit Court Judge Merrick Garland, Grassley said the president had exercised his constitutional duty and the Senate was exercising its right to advise and consent by not considering the nominee. “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice.”
July 17, 2020: “If I were chairman of the committee and this vacancy occurred, I would not have a hearing on it because that’s what I promised the people in 2016,” Grassley told reporters.
Sept. 21, 2020: Grassley said his position over the years has been that the Senate Judiciary Committee chairman and majority leader should decide whether to hold a hearing. “Both have confirmed their intentions to move forward, so that’s what will happen,” he said in a statement. “Once the hearings are underway, it’s my responsibility to evaluate the nominee on the merits, just as I always have.”
Grassley was also critical of Democrats, who he said had made clear their intentions to “upend norm after norm to hijack the judiciary.”
“If the shoe were on the other foot, Senate Democrats wouldn’t hesitate to use their constitutional authority and anything else at their disposal to fill this seat,” he said.
Sen. John Cornyn
March 16, 2016: “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court,” Cornyn said in a statement. “The only way to empower the
American people and ensure they have a voice is for the next president to make the nomination to fill this vacancy.”
Sept. 19, 2020: On Twitter, Cornyn tweeted a link from McConnell’s office to a post outlining all of the times the Senate leader said the Senate hadn’t confirmed the Supreme Court pick of a president of the opposite party since 1888. He also retweeted McConnell’s comment that Trump’s nominee would get a vote.
Sen. Mike Lee
Lee and his brother, Utah Supreme Court Justice Thomas Lee, are both on the president’s list of potential Supreme Court nominees, though Trump has said he will choose a woman. The senator commented on Ginsburg’s death but not on what the Senate should do now.
March 16, 2016: “In light of the contentious presidential election already well underway, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: We will not have any hearings or votes on President Obama’s pick,” Lee said in a statement.
Sen. Ted Cruz
When Scalia died in 2016, Cruz was still running for the Republican presidential nomination. He dropped out May 3. He was added recently to the president’s list of potential Supreme Court nominees.
Feb. 14, 2016: “The Senate has not confirmed a nominee that was named in the final year, an election year, in 80 years,” Cruz said during an appearance on ABC’s “This Week.”
Cruz said he would “absolutely” filibuster anyone Obama nominated.
Sept. 18, 2020: “We are one vote away from losing our constitutional liberties,” Cruz said during a Fox News appearance. “I believe that the president should, next week, nominate a successor to the court, and I think it is critical that the Senate takes up and confirms that successor before election day.”
Sen. Thom Tillis
Tillis is in a close reelection race in North Carolina.
March 16, 2016: “We are in the middle of a presidential election, and the Senate majority is giving the American people a voice to determine the direction of the Supreme Court,” Tillis said in a statement.
Sept. 19, 2020: “Four years ago, a Supreme Court vacancy arose under divided government and a lameduck president as Americans were choosing his successor,” Tillis said in a statement released on his campaign account. “Today, however, President Trump is again facing voters at the ballot box and North Carolinians will ultimately render their judgment on his presidency and how he chooses to fill the vacancy.”
Sen. Joni Ernst
Ernst wasn’t on the Judiciary Committee in 2016, but has been in the Senate since 2014; she is in a tight battle for reelection in Iowa.
March 16, 2016: “Again, this is not about a particular person,” Ernst told reporters on a conference call. “This is about the fact that we have a president who is moving out of his residency and we have a very, very significant election coming up where we want the people to speak out. We want to hear their opinion on this. They will do that by electing a new president.”
July 17, 2020: Ernst said she would be supportive of holding confirmation hearings for a nominee if a seat opened. “We have a Republican-held Senate and a Republican president and so I don’t see that there would be any difference between the president and the Senate on a selection of a Supreme Court justice,” she said during an appearance on Iowa’s PBS station.
Asked why it was important for voters to have a say in 2016 but not in 2020, she said the White House and Senate were now held by the same party. “This is a different scenario,” she said.
Sept. 18, 2020: Her statement on Ginsburg’s death did not comment on next steps.