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WASHINGTON — If a Supreme Court vacancy emerges next year, Mitch McConnell, the Senate majority leader, said Tuesday that he would fill it.
The comment, however, diverges from his decision in 2016 to not consider President Barack Obama’s Supreme Court nomination of Merrick Garland after the death of Justice Antonin Scalia earlier that year.
At a chamber luncheon in Paducah, Kentucky, on Tuesday, McConnell was asked by a member of the audience, “Should a Supreme Court justice die next year, what will your position be on filling that spot?"
“I would fill it,” he responded, smirking, which drew loud laughter.
McConnell said that while the 2017 GOP tax cuts could be repealed in the future, judicial confirmations are more permanent.
“What can’t be undone is a lifetime appointment," McConnell said. “That’s the most important thing that we have done for the country, which cannot be undone.”
McConnell has said that the biggest decision he has made in his Senate career was his choice not to consider Garland’s nomination.
“I made the call in 2016 that we would not fill the vacancy created by the death of Justice Scalia in the last year of the previous administration, a decision of enormous consequences,” he said. “You may have recalled the level of controversy that it produced. I thought I was on pretty firm ground because if I knew the shoe had been on the other foot, the guys on the other side would have done the same thing. That provided an opportunity for the American people to speak up about who they wanted to make that decision.”
In a tweet Tuesday night, Senate Minority Leader Chuck Schumer, D-N.Y., called McConnell a hypocrite.
Shortly after Obama nominated Garland in March 2016, McConnell said on the Senate floor: "The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”
He then told Garland that afternoon by phone that the Senate would not consider his nomination. McConnell consistently cited the so-called Biden Rule, an informal understanding that a president should not be able to name a judge to the Supreme Court during an election year. McConnell and then-Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, would not even allow a hearing on Garland’s nomination. The bet paid off when Trump was elected and was able to nominate conservative Neil Gorsuch to the court.
Asked for a comment Tuesday night, McConnell spokesman David Popp referred NBC News to an interview the majority leader did with Fox News in October 2018, and said “it’s not a reversal” because “2020 (would not) be the same as 2016.”
In that interview, host Chris Wallace asked McConnell what he would do if Trump were to name someone to the Supreme Court in the final year of his first term in 2020.
“Well, I understand your question of what I told you is what the history of the Senate has been. You have to go back to 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," McConnell said.
McConnell has conveyed this reasoning several times — the decision not to consider Garland's nomination was because the Senate was held by a different party than the president leading into an election. His answer Tuesday is consistent with that claim.
Since Trump became president, the Senate has confirmed two justices to the Supreme Court — Gorsuch in 2017 and Brett Kavanaugh in 2018 — both of whom are considered conservative. Republicans were able to confirm the two nominees after they triggered the nuclear option in 2017, lowering the vote threshold so that a Supreme Court pick could be confirmed by the Senate with a simple majority rather than the previous 60-vote threshold.
There are several justices on the Supreme Court who have served for several decades. Justice Stephen Breyer is 80 and has served since 1994. Justice Clarence Thomas is 70 and has served since 1991, the longest-serving justice currently on the court. And Justice Ruth Bader Ginsburg, 86, has served since 1993 and has suffered a series of health-related issues, including recent surgery for lung cancer. She returned to the court in February.