Will Congress Confirm a New Supreme Court Justice before the midterms? McConnell Says Yes, History Says No

With Supreme Court Justice Anthony Kennedy announcing his retirement Wednesday, that leaves only 132 days before November’s midterm elections to fill his seat before a new Congress is ushered in.  

Republicans on Capitol Hill have been swift to say a new justice should be nominated by the president and confirmed by the Senate before the election. President Donald Trump told reporters he would “immediately” begin the search for a new Supreme Court justice. Senate Majority Leader Mitch McConnell said the Senate “will vote to confirm Justice Kennedy’s successor this fall.”

With Kennedy’s retirement taking effect July 31 and a new Supreme Court session convening October 1, it leaves the president and Senate little time to act if they want to avoid an even 4-4 ideological split on the bench.

But McConnell and other Capitol Hill Republicans were in no rush to fill a Supreme Court vacancy under the Obama administration.

Justice Antonin Scalia died on February 13, 2016, leaving a once-conservative seat open for replacement by then-President Obama. That same day, McConnell said that Scalia should not be replaced until after the 2016 presidential election.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president. ”

Obama nominated Merrick Garland on March 16, 2016, 237 days before that year’s election. Garland was never confirmed or even put up for a vote by McConnell, which he boasted about to constituents at an August 2016 event in Kentucky.

"One of my proudest moments was when I told Obama, 'You will not fill this Supreme Court vacancy,'" McConnell said.

But fast forward just months later in January 2017, following Trump’s presidential win, and McConnell had a change of tone.

"Apparently there's yet a new standard now, which is not to confirm a Supreme Court nominee at all,” the Senate Majority Leader said. “I think that's something the American people simply will not tolerate."

Neil Gorsuch was eventually confirmed in April after McConnell used the so-called nuclear option that lowered the number of votes needed from 60 to 50.

With a possibility for the Senate’s balance of power to change after the midterm elections, Democrats say the vacant seat should not be filled until after the election.

Senate Democratic Whip Dick Durban asked McConnell to delay the confirmation vote to “give the American people their say in the upcoming election before court vacancies are filled.”

“With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the president’s nominee once the new Congress is seated in January,” Durbin said.

Trump told reporters in the Oval Office Wednesday that the same 25 names that were on the list when he chose Neil Gorsuch are up for consideration as Kennedy’s replacement.