The future of the Supreme Court—and the 2020 election—was upended Friday night following the death of Justice Ruth Bader Ginsburg and Senate Majority Leader Mitch McConnell’s vow shortly after to replace her. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell, a Kentucky Republican, said in a statement on Friday, setting off an imminent confirmation battle as early voting in the presidential race has begun and election day is less than 45 days away.
Unsurprisingly, McConnell, who has effectively used his power to get more than 200 of Donald Trump’s federal judicial nominees confirmed—along with two Supreme Court justices—wouldn’t pass on the opportunity to tilt the nation’s highest court further to the right, with a 6-3 conservative majority potentially impacting a generation of rulings on issues ranging from Obamacare to immigration to abortion. McConnell already indicated he wouldn’t hesitate to vote on Trump’s choice—even if it flies in the face of what he did in March 2016, when he blocked a vote on President Barack Obama’s nominee, Merrick Garland, to replace the late Justice Antonin Scalia. At the time, McConnell argued that the vacancy occurred during an election year. So McConnell’s declaration to fill the Ginsburg vacancy so close to the 2020 election has outraged Democrats, who are calling on him to wait until January, Politico reported.
“The American people should have a voice in the selection of their next Supreme Court Justice,” tweeted Senate Minority Leader Chuck Schumer. “Therefore, this vacancy should not be filled until we have a new president.” Democratic nominee Joe Biden, too, said “the voters should pick the president and the president should pick the justice for the Senate to consider,” noting how that was the Republicans’ position in 2016.
In 2016, McConnell cited the so-called “Biden rule” to justify his refusal to confirm Garland, referring to a speech made two decades earlier by then-Senator Biden in which, following the controversial Clarence Thomas hearings, he urged the Senate to delay a hypothetical SCOTUS confirmation hearing, should a vacancy appear, until after that year’s presidential election. “The Senate will continue to observe the ‘Biden rule’ so that the American people have a voice in this momentous decision” on whom to name to the court, McConnell said at the time, an operating principle he shamelessly flouted three years later. Asked by an attendee at a 2019 Chamber of Commerce event in Kentucky what his position on filling a vacancy would be should a Supreme Court justice die next year, McConnell answered, “Oh, we’d fill it,” drawing laughter. McConnell justified his reversal by claiming that such restraints should not apply at a time when, unlike in 2016, the White House and the Senate are controlled by the same party—an explanation his spokesperson offered to CNN.
In a letter to GOP senators about the “tremendous pressure from the press to announce how we will handle the coming nomination” in the upcoming days, McConnell advised fellow Republicans “who are unsure how to answer, or for those inclined to oppose giving a nominee a vote” to take caution before disclosing their stance on the matter. “I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.” Lindsey Graham, who plays a key role in the process as chair of the Senate Judiciary Committee, indicated Saturday he is on board with McConnell. “I fully understand where President @realDonaldTrump is coming from,” Graham tweeted after the president wrote that Republicans have an “obligation” to move forward “without delay.”