Hypocrisy in high places: How politicians flip-flopped on election-year Supreme Court nominations

Joe Biden, Mitch McConnell, Hillary Clinton and Lindsey Graham are just some of the political figures to change their position between 2016 and 2020.

Updated: September 21, 2020 - 10:50am

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When the death of the conservative Justice Antonin Scalia created a Supreme Court vacancy in 2016, the Republican-controlled Senate pointed toward the impending presidential election and refused to vote on President Obama's nominee despite howls of protest from Democrats. 

But with the death Friday of iconic liberal Supreme Court Justice Ruth Bader Ginsburg, the tables have turned. And now it is Democrats who are demanding that the Senate wait until after the 2020 election before moving ahead with any nominees. Likewise, Republicans who in 2016 advocated waiting until after the election to act on a high court nominee are now pledging to charge ahead once President Trump announces his choice to replace Ginsburg.

Senate Majority Leader Mitch McConnell in 2016 staunchly opposed the idea of moving forward with Obama's nomination of Merrick Garland, asserting that the Senate should wait to allow the winner of the 2016 presidential election to nominate someone to fill the void left on the nation's high court.

"The Senate has a role to play here," McConnell said on "Fox News Sunday" on March 20, 2016. "The president nominates, we decide to confirm. We think the important principle in the middle of this presidential year is that the American people need to weigh in and decide who's going to make this decision. Not this lame duck president on the way out the door, but the next president."

McConnell in a Friday statement about the death of Justice Ginsburg said that the Senate will vote on the person President Trump eventually nominates to fill the latest judicial vacancy.

"In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year," the Kentucky Republican said. 

"By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate," McConnell said.

Democratic nominee Joe Biden has actually flipped three times on the issue over the last quarter century.

Back in June 1992, then-Sen. Biden suggested that if a Supreme Court vacancy were to occur before Election Day and the president put forward a nominee, the Senate could wait to act until after the election.

But in a March 2016 New York Times op-ed then-Vice President Biden argued Republicans should not wait until after the election to move forward once President Obama announced a Supreme Court nominee.

"I know there is an argument that no nominee should be voted on in the last year of a presidency. But there is nothing in the Constitution — or our history — to support this view," Biden wrote in the 2016 op-ed. "As I write this, nearly all Republican senators have said that they will refuse to consider any nominee — sight unseen. At a time when we need to reduce the gridlock in our politics, this would extend Congress’s dysfunction to the Supreme Court — preventing it from functioning as our founders intended for a year and possibly longer," Biden wrote.

"In my 1992 speech, I noted that in the five cases in which justices were confirmed in the summer of an election year, all five were filling vacancies that had arisen before the summer began. That is the case now. We still have time to proceed with hearings and a vote before we reach the summer conventions and fall campaign," Biden declared in the 2016 piece.

But now the nominee in 2020, Biden is currently blasting the idea of Republicans advancing a nominee and arguing that the winner of the election should select the next Supreme Court nominee. 

“To jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe the people of this nation will stand for it,” Biden said, according to The Hill.

South Carolina Republican Sen. Lindsey Graham, the chairman of the Senate Judiciary Committee, has already expressed his support for plowing ahead with the nomination process once Trump selects a nominee. But in 2016 he advocated for waiting until the election had passed.

"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination and you could use my words against me and you'd be absolutely right," Graham said on March 10, 2016, according to Washington Post video editor JM Rieger.


Then-Democratic presidential nominee Hillary Clinton in September 2016 described Republican inaction on Obama's nomination as "a disgrace." But the former secretary of state and former senator is now arguing that based on the precedent Republicans set in 2016 they should not move ahead with a Supreme Court nominee.

"The system has been broken for quite awhile. But clearly the decision that Mitch McConnell made back in 2016 in the midst of that presidential election but at a much earlier time when Justice Scalia unexpectedly passed away is what should be the standard now. They talk about, 'well, you know, we had other standards before,' well, they made a new precedent. And that new precedent, which they all defended incredibly passionately, is to wait for the next president, whoever that is, to make the nomination. But as you clearly heard, that is not what they are intending," Clinton said Sunday on "Meet the Press."

“Our institutions are being basically undermined by the lust for power – power for personal gain in the case of the president or power for institutional gain in the case of Mitch McConnell – at the cost of ensuring that our institutions withstand whatever the political winds might be,” Clinton said.

According to a Scott Rasmussen survey released Sunday, 52% of likely voters think the Senate should delay until after the election to confirm a nominee while 41% think the new nominee ought to be confirmed as soon as it is possible.

If it makes any elected leaders feel better, even Ginsburg herself reportedly had a change of heart on the issue.

Reports over the weekend said her dying preference expressed to her granddaughter was for a nominee to be decided after the election. “My most fervent wish is that I will not be replaced until a new president is installed," she reportedly said.

But in a 2016, she had a different take as she called for a Senate vote on Garland's nomination. 

"There's nothing in the Constitution that says the president stops being the president in his last year," Ginsburg told The New York Times interview.