He first said this in 2016, then reiterated it in 2018, then reiterated it yet again for reporters yesterday. The McConnell standard for election-year vacancies is, of course, that they shouldn’t be filled if the presidency and the Senate majority are held by different parties. That’s not the case this year so it’s full speed ahead for Cocaine Mitch if any seats on the Court open up before November.
The Grassley standard is different. The Judiciary Committee shouldn’t hold hearings on a SCOTUS vacancy in an election year, period, he’s said. Those are strong words coming from a man who chaired the committee for many years. Two wrinkles, though. He’s not the chairman right now; Lindsey Graham is, and Graham has (belatedly) adopted the McConnell standard. Grassley has no control over what the Judiciary Committee does at the moment.
But he does get to cast a vote for confirmation, of course, as all senators do. That’s the second wrinkle. If McConnell and Graham defy his wishes and bring a confirmation vote to the Senate floor, would Grassley defy them in return by voting against the nominee?
Because if so, that’s a big, big deal.
Sen. Chuck Grassley, then the chairman of the Senate Judiciary Committee, incurred the wrath of liberals in 2016 when he put President Barack Obama’s nomination of Judge Merrick Garland on hold until after the presidential election.
“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 Friday morning…
Grassley gave a similar answer earlier this month when asked about rumors Justice Samuel Alito would retire at the end of the court’s term.
“If I were chairing the committee, based on what I told people in 2016, I could not process (the nomination),” he said.
He and three other Republicans could nuke the McConnell standard and impose the Grassley standard on the Senate all on their own if they decided on principle not to vote yes on any nominees in an election year. Romney might be willing to join that effort. So might Lisa Murkowski. And if the vacancy happened before the election, Susan Collins would have to think hard about whether to infuriate Maine Republicans by joining as well or risk infuriating left-leaning Maine independents by voting to confirm.
There’d be tricky strategic questions for all of them to ponder. On the one hand, declining to confirm a new Republican justice would fumble away an opportunity that the party might not have again for years. A vacancy, especially a vacancy in a seat currently held by a liberal, would be a chance to reshape the Court for decades. If you’re Chuck Grassley, how could you say no to that? More to the point, how could you expect Republican voters to ever forgive you if you did?
On the other hand, progressives are restless for revenge on the GOP for holding open Scalia’s seat in the 2016 election. That was their own chance to reshape the Court; McConnell blocked it and then Hillary blew the election. A few months later, Republicans nuked the SCOTUS filibuster to confirm Gorsuch. Ever since, lefties have chattered excitedly about radical ways to remake SCOTUS via Court-packing, term limits on justices, etc. A Romney or Collins might calculate that filling a seat this fall, with Trump poised to lose the election, would turbo-charge those complaints and leave Biden with little choice next year but to sign on to a Court-packing effort. “For institutional reasons,” they might say, “we believe voters should be allowed to choose which president fills this vacancy.” That might be enough to puncture the left’s Court-packing balloon.
The closer we get to the election, the more dicey the politics of filling a surprise vacancy would get. Imagine that a seat opened up in mid-October. Normally there’s a period of many weeks between the time a seat opens, a nominee is chosen, confirmation hearings are held, and the vote is taken. Brett Kavanaugh was nominated by Trump on July 9, 2018; his confirmation hearing didn’t begin until nearly two months later. Would McConnell simply jettison that interim period and schedule a confirmation hearing the day after Trump nominated someone in October, without any time for the opposition to research the candidate? Would he cancel hearings altogether and hold a vote ASAP to get the nominee confirmed before Election Day? It’s unpredictable how that would play politically. Republican voters might be energized by it; Democratic voters definitely would be. But it would also change the subject from the pandemic, which might help Trump marginally.
If McConnell concluded that the spectacle of ramming through a nominee via irregular procedures was apt to boost lefty turnout against Trump, would he hold off on a confirmation vote purely for that reason? If he did, then *that* might boost lefty turnout by giving them an extra reason to show up on Election Day. “The seat is open! We need to elect Biden so that he can fill this vacancy, not Trump!” Like I say: Dicey.
Where things get really dicey is the scenario in which a vacancy opens up during the lame-duck session after Trump has lost the election. There’s no question Trump would want to fill that seat; I think McConnell would too, even (especially?) if Election Day swept an incoming Democratic majority to power in the Senate in the next term. Again, though, the normal timetable for confirmations would make this difficult — if McConnell intended to follow something like a normal timetable — since there are just two months between Election Day and the swearing-in of the new Senate. And I think it’d be much harder to hold the GOP Senate caucus together in voting to confirm during a lame-duck session than it would be if a vacancy opened up before the election. Romney, Collins, Murkowski and a fourth Republican (Grassley?) might simply say, “The people have spoken, they want a Democratic government in charge now, and we feel it’d be improper to deny them their will on something so important by ramming through a confirmation via irregular procedures.”
The Election Day margins might matter too. Confirming a Republican justice during the lame-duck period after an election which the GOP lost very narrowly would be easier to sell politically than confirming one after an election in which they’d been blown out.
But I don’t know. It’d be awfully hard to pass on one last chance to put a conservative on the Court before losing power. Joni Ernst was asked about this very scenario yesterday. Watch the clip below for her response.