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Setting the record straight on the Supreme Court

TOPEKA, KS – Over the weekend, Democrats and their defenders in the media have kicked the misinformation campaign into high gear regarding the history of the Supreme Court and the position advanced by Senate Majority Leader Mitch McConnell in 2016.

Here are the facts. 

1. History is on the side of Republicans when it comes to filling Supreme Court vacancies.

2. There have been 10 instances where a vacancy has occurred in an election year where the party opposing the President controls the U.S. Senate – most recently in 2016. Of those 10 instances, the President’s nominee was only confirmed three times

3. There have been 19 instances where a vacancy has occurred in an election year where the President’s party controls the U.S. Senate – the death of Justice Ruth Bader Ginsburg is the 20th time. Of those 19 prior instances, the President’s nominee was confirmed 17 times

4. Article II, Section 2 of the United States Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.” The Constitution vests the sole power of “advice and consent” to the U.S. Senate, and creates no further requirement for the Senate to satisfy when making its decision to confirm or reject a President’s nominee. There is no requirement to hold hearings or a vote. 

5. Majority Leader McConnell stated in his initial floor remarks in 2016 and repeatedly since, that it had been since 1888 that a Senate had confirmed the election-year nominee of a President from an opposing party. McConnell’s position to hold the seat open through the 2016 election was the same position held by Joe Biden in 1992 and Harry Reid and Chuck Schumer in 2007 when they were asked about hypothetical vacancies in those election years. History supports the position, as noted prior.

6. McConnell has been clear to emphasize the nature of divided government from the very beginning in 2016. He has also been clear he would move to fill a vacancy in 2020, which would follow historical precedent. As a reminder, 17 of 19 nominees have been confirmed throughout American history in this situation. 

7. McConnell’s position remains consistent, as circumstances have changed between 2016 and 2020. In 2016, we had divided government. In 2020, the GOP controls both the White House and the Senate. The only way to argue hypocrisy in this instance is to completely ignore McConnell’s repeated emphasis on divided government in 2016.

8. Every Democrat, from then-Vice President Biden to Chuck Schumer to Nancy Pelosi and on down, demanded a vote on President Barack Obama’s nominee in 2016. The only circumstance that has changed between now and then is it will be President Donald Trump’s nominee seeking confirmation in 2020. Now opposing a vote on President Trump’s nominee is a blatant flip flop supported by no historical precedent, made for purely political reasons. 

9. Justice Ginsburg’s death created a vacancy on the Supreme Court 46 days prior to Election Day. Democrats have argued confirming a replacement would be “fast-tracking” a nominee. Justice Ginsburg’s confirmation lasted 42 days.