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McConnell opens up possibility Senate would confirm Trump SCOTUS nominee in 2020

McConnell opens up possibility Senate would confirm Trump SCOTUS nominee in 2020

Clarifying the Biden Rule: Don’t vote on nominee in election year IF president of different party than party controlling Senate.

Mitch McConnell dropped a political nuclear bomb on Fox News Sunday with Chris Wallace.

In discussing Senate confirmation of Supreme Court nominees, McConnell discussed how he did not allow Obama’s nomination of Merrick Garland to go forward. He contrasted the Republican position with Democrats’ attacks on Brett Kavanaugh by pointing out that Republicans didn’t try to destroy Garland, they simply followed Senate tradition of not voting on a nominee in a presidential election year.

But in describing that history, McConnell said that the history of the Senate going back to the 1800s was to not vote on a nominee in a presidential elections year where the president is of a different party than the party controlling the Senate.

That last provision was picked up on by Wallace, who asked if that meant Republicans would confirm a Trump nominee in the next presidential election year.

McConnell didn’t answer directly, he just repeated that the tradition was not to confirm in the last year where the president was of a different party than controlled the Senate. That would mean, but McConnell didn’t say explicitly, that if there were a Supreme Court vacancy in 2020, the Senate would move forward with confirmation despite the looming 2020 presidential election.

Here’s McConnell’s appearance, the comments in question start at 3:10:

McConnell: … We didn’t attack Merrick Garland’s background and try to destroy him. We didn’t go on a search and destroy mission. We simply followed the tradition in America, which is that if you have a Senate of a different party than the president, you don’t fill a vacancy created in a presidential election year. That went all the way back to 1888. Schumer himself said 18 months before the end of the Bush tenure that if a vacancy occurred they wouldn’t fill it. So what we did was follow tradition. But we didn’t attack a nominee, and we didn’t go on a search and destroy mission….

Wallace: I have to pick up on something that you said, because maybe I have this wrong, but when you blocked Merrick Garland’s nomination from President Obama, you basically said that we don’t do this in a presidential election year, and that we wait until the election, and then whoever the people choose, they get to pick the Supreme Court nominee. But what you just said now was it’s a question of whether or not it’s the party in control of the Senate is different than the president. The question I guess I’m getting to here is, if Donald Trump were to name somebody in the final year of his first term in 2020, are you saying that you would go ahead with that nomination?

McConnell: Well, I understand your question. And what I told you was what the history of the Senate has been. You have to go back to the 1880 to find the last time a vacancy created in a presidential election year on the Supreme Court was confirmed by a Senate of a different party than the president. That’s the history.

Wallace: If you can’t answer my question, are you saying that if Donald Trump [talk over].

McConnell: The answer to your question is we’ll see if there is a vacancy in 2020.

Wallace: But you’re not ruling out the possibility since you’re the Republican majority leader and there’s a Republican president, that you would go for and push the nomination of a Trump nominee in the election year.

McConnell: What I’m telling you is the history is you have to go back to 1880 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. That’s been the history.

(Added) Fox News has now tweeted out the clip:

People will now pour over McConnell’s comments on the “Biden Rule” to find an inconsistency.

While I haven’t searched exhaustively, it does appear that previously McConnell has left himself a political out by saying that if the shoe were on the other foot in 2016, and there were a Republican president and Democrat Senate, Senate Democrats would not have voted on a Republican nominee.

Expect heads to explode with claims McConnell has moved the goalposts.

This could become critical should Ruth Bader Ginsburg retire or otherwise leave the court in Trump’s last year. She seems to have signaled a desire to hang on past Trump’s first term, but she would be in her mid-80s at such time. Justice Breyer is the second oldest Justice, so there’s a real possibility that in the next two years one of them would leave the bench, creating an election year vacancy.

Whether a Republican Senate would move forward with a Trump nominee in 2020 might depend on whether Republicans pick up more Senate seats in 2018. If Republicans lose control, it’s not an issue. Democrats will block any Trump nominee for two years. If Republicans still only have a one seat majority, it’s likely at least two Republicans would defect from an election year confirmation. But if Republicans pick up seats in 2018, and have a 4 or 5 seat majority, an election year confirmation could happen.


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“Well, the Dems made such a ruckas about Garland that we’ve decided to reconsider our position if a justice slot opens up during Trump’s eighth year as President. After all, it’s what they said they wanted.”

Yeah, watch liberal heads pop.

    Tom Servo in reply to georgfelis. | October 7, 2018 at 10:30 am

    Ha Ha! I think Mitch is just trolling the dems now.

    also: “but she would be in her mid-80s at such time.”

    RBG is 85 years old already.

    JusticeDelivered in reply to georgfelis. | October 7, 2018 at 11:31 am

    If only Democrats had sought peace with Trump after he was elected, so stupid and now they are paying dearly.

      If the Democrats had sought peace with DJT, this nomination would have been greeted with that nice ripple of surprised approval that characterized the nomination of Sandra Day O’Connor.

      Kavanaugh could have been taken as a moderate, skilled, concilliatory choice, but for the prior decision by the Democrats at the national level to oppose whoever DJT picked. The strategy was already set before the nomination, so much so that a pre-written fundraising letter was issued with XX instead of the candidate’s name.

      Senator Collins even mentioned that in her speech announcing her vote. It was that blatant.

        Tiki in reply to Valerie. | October 7, 2018 at 3:57 pm

        Susan Collins left Justice Kav to twist in the wind until said political wind shifted in her favor.

        Gilding cowardice as a virtue? Sad!

          snopercod in reply to Tiki. | October 7, 2018 at 5:26 pm

          What do you think of the theory that Collins and the other RINOs knew all along that they would vote to confirm Kavenaugh in the end but just acted coy to bring attention (and power) to themselves?

    Fiftycaltx in reply to georgfelis. | October 7, 2018 at 1:49 pm

    Whenever Ruth Vader Ginsberg goes tango uniform, President Trump needs to appoint a replacement. And/or Breyer or any other Justice. A 6-3 or 7-2 SCOTUS that is faithful to the Constitution would turn this country around. The we need a Convention of states to pass a balanced budget amendment and a term limit amendment with an AGE LIMIT for ALL elected and appointed officials. The day someone turns 75, that’s it. No more “service” for you. The likelihood of advancing senility is too great. How many 85 y/o’s do we have now?

If they do what they did with kavanugh I can the reason

G. de La Hoya | October 7, 2018 at 10:11 am

Will Walking Dead RBG last that long 🙂

    Bucky Barkingham in reply to G. de La Hoya. | October 7, 2018 at 11:22 am

    IMHO her seat will become open next year, either thru incapacity or expiration.

    The Friendly Grizzly in reply to G. de La Hoya. | October 7, 2018 at 1:31 pm

    She’s dying; it’s fairly obvious from the various press photos. I think Sotomayor will be next, or close, in line for replacement. She is type 1 diabetic, not takint care of herself, and looks fairy bad.

      Actually I think if RBG goes that Beyer won’t be far behind, in a 5/4 court with Roberts liable to come down anywhere then they have value and power, in a 6/3 court not so much.

Too much government in too much of our affairs leads to vicious disagreements; ObamaCare, Reid’s ends the filibuster, the Garland stall.

In all cases, the votes carried the day; I’m sure that’s going to remain the government’s official policy.

“Expect heads to explode with claims McConnell has moved the goalposts.”

Headline: “Democrats who constantly move goalposts complain about Republicans moving goalposts.”

The only rule is that the senate does what the senate likes. There has never been a rule that the senate shouldn’t confirm someone in a presidential election year, merely that it doesn’t have to.

It doesn’t have to in any other year either, of course, but holding a supreme court seat open for more than a year will not go over well with the public, so they feel politically compelled to confirm someone. Holding it open with an election coming up is easier to explain to the public, so senates have felt free to do so.

It should be ****ing obvious that if a vacancy occurs in 2020 and Trump nominates a conservative like the last two, that person will be confirmed tout de suite, and the Dems can howl all they like.

    johnny dollar in reply to Milhouse. | October 7, 2018 at 10:44 am

    Whatever importance “comity” used to have in this process, it has been eradicated by the Democrats hysterical, vicious, and unprecedented attacks on Justice (how I love typing that word) Kavanaugh.
    As someone said during the mud wrestling match we have just witness, they sowed the wind and will reap the whirlwind.

      JusticeDelivered in reply to johnny dollar. | October 7, 2018 at 1:20 pm

      Which is why in another thread I said that when opponents gutter fight one has to be willing to wade into the gutter with them. The tactics we have seen have brutal and until we brutalize them they will not change their ways. They are bullies, the only way to deal with a bully is to kick the living crap out of them. You cannot deal with a bully without doing so.

caseoftheblues | October 7, 2018 at 10:54 am

Hmmmm…does the GOP finally understand you can’t fight using the Marquis of Queensbury rules against a guerrilla warfare force…..

When originalists dream,

Now that Kavanaugh’s been confirmed and in place we now have a Firm Five (though Roberts is a little too iffy). Ruth the Buzz, who delusionally thinks she’s in charge of the length of her life span, may suffer a snip of the Abhorred Shears of Atropos sooner than she thinks, with DJT naming her replacement (yes, the Senate will remain GOP). Breyer, longing to spend his final days eating Breyers® Ice Cream with his grandkids and realizing that he will now be facing a Solid Six, responds to the loss of the Buzz, by crying, “What’s the use; I can no longer effectively legislate on behalf of the Democrat Party from the bench,” and resigns. The Don goes into action, and the Solid Six becomes the Solid Seven.

Then, in late-2022 or mid-2023, Thomas & Alito, each of whom will by then be in his mid-70s, come to DJT (yes, there will be a second term), announce their plans to retire, thereby giving the Don time to line up their respective replacements. Thomas & Alito condition their retirements on the Don’s promise to “settle all family business” and to replace them with people in the mold of Scalia, with each nominee to be in his/her mid-40s. In time Roberts does the same, though he’ll be coming to President Mike Pence. The Solid Seven remains solid for decades.

I LOVE IT! Once the Senate Republicans actually realized the depths to which the Democrats and their allies in the media would sink in order to destroy a good man and his family, it’s like got spine transplants. Do Not Forget – We the Voters won’t.

There’s no confusion over the “Biden rule” because it isn’t a rule based on any principle more complex than what you can get away with.

Voters will tolerate, maybe even slightly reward, a delay of up to a year. But they don’t like having SCOTUS understaffed longer than that because it leads to judicial deadlock. Decisions rendered with 8 justices also have a smidge less legitimacy.

    Edward in reply to Matt_SE. | October 7, 2018 at 11:48 am

    Even moreso those “decisions” which are a 4-4 pass which affirms a Circuit Court decision.

    Ragspierre in reply to Matt_SE. | October 7, 2018 at 12:21 pm

    I’ll respectfully disagree here. Decisions do not gain or lose “legitimacy” over a vote count.

    It’s what they hold and how that is supported that provides them legitimacy. Otherwise, all you are scoring is politics.

      Conan in reply to Ragspierre. | October 7, 2018 at 7:15 pm

      You know damn well the party that just pulled this stunt isn’t going to be bound by anything because they weren’t bound by anything on this seat. The Democrats are an “anything goes to win” party and that includes making others play by a rulebook you laugh at.

    txvet2 in reply to Matt_SE. | October 7, 2018 at 12:39 pm

    “”Decisions rendered with 8 justices also have a smidge less legitimacy.””

    I don’t see why, if they’re all 5-3.

      Matt_SE in reply to txvet2. | October 7, 2018 at 6:37 pm

      Any decision that was made without a full court doesn’t have all the opinions. Maybe there was some brilliant point of dissent that we never got to hear. Maybe that point would’ve changed the vote.


Mitch should just come out and say “I’m the majority leader, I control the schedule. If we want to confirm a candidate or not, we’ll do it as we please.”

What have they done with the real Mitch McConnell?

    Edward in reply to Edward. | October 7, 2018 at 11:53 am

    Oh yes. Not complaining, I like the new model just fine so far. Also the new Lindsey Graham.

    dmo in reply to Edward. | October 7, 2018 at 12:01 pm

    Let’s not forget that these same leftists, back in June, harassed Mitch and his wife over Immigration laws.

    Elaine Chao, Mitch’s wife, just blasted the fools, too.

    erc in reply to Edward. | October 7, 2018 at 12:09 pm

    Fear the Turtle. He’ll snap.

    Matt_SE in reply to Edward. | October 7, 2018 at 6:40 pm

    I don’t see why this isn’t the same McConnell as before. He did nothing out of character. When he wants something, he fights to get it.

    It’s just that he doesn’t often want what the base wants, at least when it conflicts with his donors.

If the GOP picks up more senate seats and keeps the house this mid-term then they should seriously consider passing a mandatory retirement age of 85 for SCOTUS and force RBG to retire.

William A. Jacobson: McConnell has moved the goalposts.

Of course he did.

    Milhouse in reply to Zachriel. | October 7, 2018 at 12:21 pm

    Fake quotes, Zachriel? Prof J did not write that. What he wrote was “Expect heads to explode with claims McConnell has moved the goalposts”. What you did is as dishonest as the claim that Kavanaugh had called certain drugs abortifacients.

    Ragspierre in reply to Zachriel. | October 7, 2018 at 12:24 pm

    You need to quote accurately. You didn’t.

      Ragspierre: You need to quote accurately. You didn’t.

      We often edit out the “Only poopyheads think …” We forgot the ellipses, which should have been used at minimum. However, we will be more careful in the future.

    txvet2 in reply to Zachriel. | October 7, 2018 at 12:43 pm

    Does it ever occur to you that when you have to misquote or misrepresent a quote that you’ve lost the argument?

    Way to miss the point. (Anyone who read the original post knew the context.)

    Expect heads to explode with claims McConnell has moved the goalposts.

    Of course McConnell moved the goalposts, because it has nothing to do with precedent or tradition or rules, but everything to do with power. They have the power, so Republicans are just making up the justifications to fit the conclusion. Then you and others repeat and amplify them.

      Senator practices politics. News at 11.

      I believe Obama said it best when he said, “I won.” I’m not a partisan – I’m just averse to whining. There would be no mercy under a Hillary administration with control of the Senate. None.

      This is the world Hillary built, with help from certain other luminaries. Some of us warned that it wouldn’t look so enjoyable if the tables were turned. You are now living that reality. I guess liberal triumphant victory was not inevitable after all.

      healthguyfsu in reply to Zachriel. | October 7, 2018 at 1:49 pm

      No, you missed the point. We expect heads to explode and yours already did, prematurely, probably a regular problem for you…or the other extreme.

      Milhouse in reply to Zachriel. | October 7, 2018 at 2:09 pm

      The point is that your quote is dishonest. I’m sure I can find an example of Hillary Clinton saying “They say I’m a criminal”, or “They want to lock me up”; what would you say if I were to quote her as saying “I’m a criminal”, or “Lock me up”? Or if I were to quote Nixon as having said “I’m […] a crook”?

      And no, McConnell hasn’t moved any goalposts. The only goalpost there ever was, was on when the senate should feel free to hold a seat open. Had he said that if there’s ever again a R senate and a D president, they’d hold a seat open for 18 months, or 2 years, that would be moving a goalpost, because the “rule” stated during the Garland nomination was that it was OK to hold a seat open during a presidential election year, not earlier.

      But there was never any rule, understanding, or assumption that at some point the senate should or must hold a seat open, so there’s no goalpost to move. On the contrary, if Trump is defeated in 2020 and makes a lame duck nomination I expect an R senate to ram through a confirmation. Because I know the Ds would do so.

        userpen in reply to Milhouse. | October 7, 2018 at 2:18 pm

        Milhouse is right as usual.

        Milhouse: The point is that your quote is dishonest.

        Don’t think anyone was confused, but we quoted the entire sentence in the follow on comment to make sure there was no confusion.

        Milhouse: And no, McConnell hasn’t moved any goalposts. The only goalpost there ever was, was on when the senate should feel free to hold a seat open.

        He is supposedly clarifying a rule, a rule which doesn’t exist. According to power politics, rather than long-standing tradition, whenever the President and Senate are held by opposite parties, the Senate should not even consider a nominee.

          Colonel Travis in reply to Zachriel. | October 7, 2018 at 4:15 pm

          Don’t think anyone was confused

          Correct, because you lied about what was written and it’s obvious to anyone with a brain. This is why you were called on it.

          He is supposedly clarifying a rule, a rule which doesn’t exist.

          The Biden Rule (which does exist because it has been applied) is shorthand for “recent Senate tradition that was instigated by Democrats.”

          I thought someone like you, who is sophisticated and savvy and can pick up on subtle meanings, could have figured this out? In other words, let me quote the Amazing Zachriel for anyone who comes across the words “Biden Rule”:

          Don’t think anyone was confused

          Funny how you blast everyone for not being able to pick up on your prowess, and then in the next paragraph do the very F-ing thing you just criticized.

          Next time, try harder not to step on the rake.

          Colonel Travis: The Biden Rule (which does exist because it has been applied) is shorthand for “recent Senate tradition that was instigated by Democrats.”

          Except Republicans claimed it was a rule before it was ever done. No, it was never a rule or tradition of the Senate. It’s an obviously fake veneer over a simple application of power.

      Petrushka in reply to Zachriel. | October 7, 2018 at 2:25 pm

      Are you suggesting that one party rules by principle rather than by power?

    zennyfan in reply to Zachriel. | October 7, 2018 at 2:44 pm

    Meant to downvote.

Vote for MAGA Republicans.

Next time the Dems control all 3 branches they’ll be packing the Supreme Court FDR-style, to counter Trump’s appointments.

    Gremlin1974 in reply to maxmillion. | October 7, 2018 at 5:29 pm

    Doubtful that takes a decision in the senate to change the number of Justices, and I believe they need 2/3rds to change that, though I could be wrong.

      Milhouse in reply to Gremlin1974. | October 8, 2018 at 2:03 am

      Nope, it’s just like any other legislation. It needs a majority in the house, enough senators to overcome a filibuster, and the president’s signature. 2/3 (in each house) is only needed if the president vetoes.

Justice Clarence Thomas has been a superb Supreme Court Justice. The Dems have hated him ever since he was first nominated. If the Dems and other leftists had their way, there would be no blacks on the SCOTUS. When black people don’t do as they are told by the Dems, then the Dems turn into real racists.

Why doesn’t Trump have the DOJ and FBI determine who is paying ANTFA and those who harrassed Senators during the Kavanugh confirmation? Then they could use the RICO statute against these scum and their Dear Leaders. Hopefully that would put a stop to their evil.

Morning Sunshine | October 7, 2018 at 2:09 pm

“Don’t know where McConnell & Graham were hiding their balls – but I’m glad they found them finally.” McCain had them locked up. They were released when he died

Ruthie should be “Scalia’d” before 2020

WTH do you mean by that?

If I am not mistaken, McConnell actually lumped about 170 other appointments with Kavanaugh, including dozens of administrative judges that were lingering.

The Biden rule is that you can’t confirm a SCOTUS justice in a lame duck year. 2020 is not a lame duck year unless Trump loses.

I think RGB will have a fatal heart attack one day this year when she is being evacuated after the resistance calls in a bomb threat.

By “Scalia’d” I guess you don’t mean an obviously unhealthy old person dying of natural causes.

    RSConsulting in reply to zennyfan. | October 7, 2018 at 5:39 pm

    Yah – okay – thats what I meant. Don’t get yer drawers in a bunch there Milhouse…

      Milhouse in reply to RSConsulting. | October 8, 2018 at 2:07 am

      No, that is not what you meant. “Scalia’ing”, whatever it means, must be an active verb, and you called for it to be done to Ginsburg. Don’t pretend otherwise.

Oh, dear God. I did not expect to be proven right quite this quickly.

The original is from Politico, downstream aggregator linked just to show that we all know what’s going on.

not that one would wish something upon her, but get your mourners kaddish prayer out for justice g… chucky will be beside himself…

From the “Be careful what you ask for” department, today.

Look at the Judiciary Committe’s Response to Nancy Pelosi’s Tweet.

No more Gentlemen’s Agreements in the Senate.

And I was wrong about Mitch – there is a lot to criticize, but getting Trump noms on the courts isnt one of them. I cant even imagine what being MORE effective would look like.

    tom_swift in reply to Fen. | October 7, 2018 at 4:14 pm

    McConnell is very conservative, in the “doesn’t want to do anything much” sense. When he does finally do something, he does it well . . . which just makes his usual torpor even more infuriating.

    BKC in reply to Fen. | October 7, 2018 at 4:23 pm

    Yes, he did well. However, it looks like he may have managed to slip in enough EX/IM Bank appointments so that Boeing can start getting their government handouts again. No wonder he’s so giddy.

Don’t forget when obama was elected, McConnell told the base to butt out, because he was going to ‘work’ with obama.

McConnell is a corrupt, grotesque opportunist, who would stab us in the back without hesitation.

Look at how things have changed with mccain six feet under. Imagine how they’d change without mcconnell.

Let’s just make it no confirmations of judges who aren’t originalist

I have disagreed with Yertle the Turtle many times, but I am loving him on judges!


As for why Mitch is so focused on getting the right judges in – its easy. It makes his life easier. He doesn’t have to pass legislation to undo bad liberal court decisions or bad legislation that will make a Republican Senate take slings and arrows – if he can get at least some of it overturned in the courts when it properly is ruled unconstitutional to begin with.

Fewer battles he needs to fight. Less heat he has to take when others fight battles for him.

Regardless of the motive, I am loving the new fighting spirit. It may run out of steam soon, but I will take while I can get it.

Actually it won’t matter. Not a bit. if she Kaks it is 5 to 3. No worries.

5 to 3 even bettah. Can lose one of the five and still win. This is what they are so upset about.

I am guessing the assessment of Collins on 4chan is “obvious attention whore is obvious.”

Does anyone doubt that the only ones who ever are expected to honor anything like this rule it is Republicans. Why doesn’t Wallace give blank about not filibustering no less character assissination of the nominees of the other party. Good Grief you can shove that rul about not nominated someone when the Seante and the President are from the same party right up your a$$ Wallace becuase you want Ginsburg to die or step down in 2020 so you can have a crack at keeping her seat .

Something to consider: In previous administrations, a SC justice who was considering stepping down had *no* idea who might be nominated to fill their position. In the Trump administration, there’s a list available to look at and consider. A justice therefore might look at the list and muse, “I’ve been meaning to do this for some time, and all these people appear to be qualified and sane…”

Ohio Historian | October 11, 2018 at 7:38 am

Not to be greedy, but I hope BOTH leave the court BEFORE 2020. Wouldn’t it be delicious if Trump was the President that got THREE SCOTUS picks and got them all confirmed? Esp after 00bama tried for it.