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'The McConnell rule': Some Dems say the vote for Justice Kennedy's replacement should be delayed

Dylan Stableford
Senior Editor

For many Democrats, Supreme Court turnabout would be fair play.

Reaction to Justice Anthony Kennedy’s surprise announcement that he will retire from the Supreme Court on July 31 was swift for many Democrats, some of whom said the Senate should follow the standard set by Sen. Majority Leader Mitch McConnell and deny a vote to President Trump’s next nominee to the high court.

In 2016, citing the upcoming election, McConnell blocked President Obama’s Supreme Court nominee Merrick Garland. Now, with Trump and his fellow Republicans poised to cement conservative control of the high court, Democrats hope to turn the tables on the GOP.

“Our Republican colleagues in the Senate should follow the rule they set in 2016,” Senate Minority Leader Chuck Schumer said in a speech on the Senate floor. “Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent — and that was every bit as important as the president’s right to nominate.”

Schumer also said the Senate should reject any Supreme Court pick who would vote to overturn Roe v. Wade, the landmark 1973 decision that affirmed a woman’s right to have an abortion.

Senate Majority Leader Mitch McConnell meeting with reporters on Capitol Hill in Washington, D.C., on Tuesday. (Photo: J. Scott Applewhite/AP)

“McConnell set the new standard by giving the American people their say in the upcoming election before court vacancies are filled,” Sen. Dick Durbin, D-Ill., told reporters. “We’re four months away from an election where the American people will decide the majority in the United States Senate. Following the tortured logic of Mitch McConnell, let’s let the American people speak.”

“This Supreme Court vacancy puts issues that affect every single American in the balance, from a woman’s constitutionally protected right to make her own health care decisions to privacy, equality and civil rights,” Sen. Kamala D. Harris, D-Calif., said in a statement. “Given the stakes of this seat, which will determine the fate of protected constitutional rights, the American people, who are set to vote in less than four months, deserve to have their voice heard. We should not vote on confirmation until they have voted at the ballot box.”

Harris’ counterpart, Sen. Dianne Feinstein, D-Calif., echoed the call.

“[Four] months away from an election, there should be no consideration of a Supreme Court nominee until the American people have a say,” Feinstein tweeted. “Leader McConnell set that standard when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard now.”

“Under the McConnell Rule, there is no rush to fill this seat,” Sen. Patrick Leahy, D-Vt., said. “The American people deserve a chance to have their voices heard.”

Sen. Tammy Duckworth, D-Ill., used McConnell’s own defense for blocking Garland in her reaction to Kennedy’s retirement.


“Senator McConnell set a precedent when he refused to hold a hearing on Merrick Garland, and he should stick to the rule he set,” Sen. Chris Murphy, D-Conn., said in a statement. “Under the McConnell rule, the Senate shouldn’t consider any nominee for the Supreme Court until January, and I expect Republicans in the Senate to honor the rule they all agreed to just two short years ago.”

Murphy added: “If McConnell insists on starting proceedings on a radical Trump nominee, I will do everything in my power to stop him. I did not run for the Senate to grease the skids for radicals on the Supreme Court to decimate the rights of millions of Americans. The existing court’s assault on voting rights, collective bargaining and religious liberty is awful enough — just imagine how bad working people will have it if another right-wing justice joins the court. This is a red alert moment for the American people — we need all hands on deck to stop the court from taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”

Sen. Richard Blumenthal, D-Conn., took another tack, urging Trump to nominate a like-minded replacement for Kennedy.

“Earth-shaking & gut-wrenching,” Blumenthal tweeted. “Departure of Justice Kennedy means a historic challenge is ahead. The President must appoint an open-minded & fair jurist in Justice Kennedy’s mold.”

Blumenthal later said he agreed with Democrats calling for a delay in the vote.

Sen. Bernie Sanders, I-Vt., did, too.

“When President Obama nominated Merrick Garland, Republican leader Mitch McConnell said, ‘The American people should have a voice in the selection of their next Supreme Court Justice,’” Sanders said in a statement. “We should listen to what Sen. McConnell said. President Trump should not nominate, and the Senate should not confirm, a Supreme Court justice until the American people have had the opportunity to make their voices heard in November.”

Others argued that Trump shouldn’t get to pick the next Supreme Court nominee because he’s the subject of a federal investigation.

“NO new Supreme Court nominations by Trump to replace Justice Kennedy. NONE,” tweeted Richard W. Painter, former George W. Bush ethics chief turned Democratic Senate candidate. “He is in blatant violation of the Constitution and must be impeached. Senate and House Judiciary Committee hearings are way past due. I have had it with appeasement of aspiring dictators.”


In a letter to Trump, the 81-year-old Kennedy said he was stepping down after more than 30 years as a Supreme Court justice. At the White House, Trump told reporters that a search for Kennedy’s replacement would begin “immediately.”

“He’s a man that I’ve known for a long time and a man that I’ve respected for a long time,” Trump said. “He’s been a great justice.”

Kennedy was seen as a swing vote on the high court, voting to protect abortion, affirmative action and gay rights. And some observers believe losing his moderating voice will have major consequences for years to come.


A senior White House official told CNN that Trump will push for a swift confirmation of Kennedy’s replacement before the midterm elections, and a nomination could come “within weeks.”

On Capitol Hill, McConnell said the Senate “stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy.”

“We will vote to confirm Justice Kennedy’s successor this fall,” McConnell added.

Trump said he would consult a list of 25 possible candidates he used to make his first Supreme Court pick, Neil Gorsuch, who was confirmed in April 2017.

One Twitter user suggested a 26th: Judge Jeanine Shapiro, a Fox News host and longtime Trump ally.

“This would be pretty awesome,” Donald Trump Jr. tweeted.


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