| Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe. Minority Leader Mitch McConnell surprised no one Monday when he declared that if Republicans regained control of the Senate and a Supreme Court seat fell vacant in 2024, they would once again refuse to consider anyone a Democratic president nominated for the spot. He implied that the same would apply to a vacancy in 2023.
Although not surprising, it's still shocking. That's not how the constitutional advise-and-consent system has ever worked. But for McConnell, if it's not nailed down, it's up for grabs — if the Constitution doesn't specifically say that the Senate must consider presidential nominations, then Republicans can ignore them. Again, it's never worked liked that. Since 1969, Democratic-majority Senates have confirmed Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Anthony Kennedy (in an election year), David Souter and Clarence Thomas, all nominated by Republican presidents. The last time a Republican Senate confirmed a Democratic president's nominee was in the 19th century. Most of that was opportunity — but of course Republicans ignored Barack Obama's nominee in 2016, and now McConnell is making clear he'll do the same if he has another chance.
So two things. It's possible that Republicans wouldn't have done this without McConnell's leadership, but it's on all of them. Had even three or four Republican senators demanded action on Merrick Garland in 2016, McConnell would've had to back down. Congressional leaders, at the end of the day, do what their caucuses want.
Also: It's not just the Supreme Court. Republicans shut down other judicial and executive-branch nominations in 2015-2016 as well — not in every case, but far more so than in similar situations in the past. In fact, since the Senate switched hands in the last two years of the George W. Bush and Barack Obama presidencies, the comparison is easy to make. Democrats in 2007-2008 confirmed two-thirds of Bush's judicial nominees, including 10 appellate selections. Republicans in 2015-2016 confirmed only 29% of district- and circuit-court nominees. In fact, that understates the difference; with the door slammed shut, Obama wound up nominating far fewer choices than Bush had done. Overall, Democrats confirmed 68 judges in 2007-2008; Republicans confirmed only 20 in 2015-2016.
The Senate has an important role in nominations. Senate elections matter, just as presidential ones do. Democratic Senate majorities (with some Republican help) defeated two of Richard Nixon's nominees and one of Ronald Reagan's, and Democratic Senate majorities in 1969-1976 and 1987-1992 certainly affected which nominees Nixon, Gerald Ford, Reagan, and George H.W. Bush submitted in the first place. That's how the system is supposed to work: If voters choose a president who disagrees with the Senate majority, the two sides need to work out a compromise. That's how the system did work, for the most part, from 1789 through 2014.
It was good enough for Senators Bob Dole, George Mitchell and Harry Reid — all intensely partisan majority leaders, but all willing to accept both the words and the meaning of the U.S. constitutional system. It's not good enough for McConnell or this generation of Republicans.
1. Joshua Ferrer and Joyce Nguy at the Monkey Cage on what actually happened to police budgets last year.
2. Dan Drezner on industrial policy.
3. G. Borden Flanagan on Thucydides and the road to civil war.
4. Dahlia Lithwick on the Justice Department and Donald Trump.
5. My Bloomberg Opinion colleague Matthew A. Winkler on California's economy.
6. And Bloomberg's Joshua Green on Camp Trump.
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