Leonard Leo, the powerful Federalist Society executive driving most of President Donald Trump’s judicial selection process, was clear last fall that he opposed the idea of the Senate confirming a Supreme Court nominee in a presidential election year.
“If a vacancy occurs in 2020, the vacancy needs to remain open until a president is elected and inaugurated and can pick,” Leo said in an October 2018 interview on PBS’ Firing Line. “That’s my position. Period.”
But asked Friday to elaborate on why he feels so strongly about this ― particularly in light of Senate Majority Leader Mitch McConnell (R-Ky.) saying this week that he’d fill a Supreme Court vacancy in 2020 ― Leo had a change of heart.
“Leader McConnell makes an excellent point regarding the history and precedent on this question, and I agree with him,” Leo said in a statement.
Leo’s original position mirrored the position McConnell took within minutes of Justice Antonin Scalia’s death in February 2016. It’s also the same argument that he and other Republicans used to deny a hearing or a vote for President Barack Obama’s pick for Scalia’s seat, Merrick Garland, for nearly a year.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a stunning statement just after Scalia’s death was announced. “Therefore, this vacancy should not be filled until we have a new President.”
But McConnell changed his tune this week and, with a smile, said he would help Trump fill a potential Supreme Court vacancy next year. He’s shifted his standard since February 2016; he now says that when the Senate is a different party than the president, you shouldn’t fill a Supreme Court vacancy created in a presidential election year ― a practice that, he says, goes back to 1888. (Princeton University historian Kevin Kruse spells out why that claim is “utter garbage.”)
McConnell’s hypocrisy isn’t particularly surprising given his reputation as a shrewd, modern-day Machiavelli. But then that leaves Leo ― whose organization of conservative lawyers has fed Trump so many of his judicial nominees, including two Supreme Court nominees that Leo helped to pick and confirm ― out of step with the Senate Republican leader confirming them.
That appears to be why Leo just changed his standard for filling a Supreme Court seat. It’s no coincidence that their new positions are politically expedient; McConnell and Leo would love another conservative on the Supreme Court, and Trump is their guy to do it.
“He is amending his position,” said a Leo spokesman. “He thinks McConnell makes excellent points on the history and precedent and agrees with him.”
None of this really matters. McConnell and Leo are intent on putting right-wing ideologues into lifetime federal court seats, regardless of their rhetoric around it. But at a minimum, in the event that a Supreme Court seat opens up in 2020, they can both now argue that filling it is, somehow, a matter of principle.