AUDIE CORNISH, HOST:
Now let's turn our attention to the Supreme Court. A nomination for Justice Anthony Kennedy's successor will likely come very soon, and Senate Majority Leader Mitch McConnell says the Senate is ready to fulfill its constitutional duty to advise and consent.
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MITCH MCCONNELL: We will vote to confirm Justice Kennedy's successor this fall.
CORNISH: This fall is an election season, and McConnell's pledge to vote on and to confirm President Trump's second nominee to the high court has Democrats crying foul. That's because the Republican leader refused to bring the nomination of President Obama's Supreme Court pick Merrick Garland to the floor during the 2016 presidential campaign. Here's Mitch McConnell back then.
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MCCONNELL: Of course the American people should have a say in the court's direction. It is a president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent.
CORNISH: Garland was nominated more than seven months before the presidential election. This time around, the midterm elections are less than five months away. We're going to talk about all this with NPR senior editor and correspondent Ron Elving. Welcome to the studio.
RON ELVING, BYLINE: Good to be with you, Audie.
CORNISH: Give us a little more context here about Merrick Garland and how that whole thing played out with the Senate.
ELVING: Merrick Garland had been on many people's short list for a long time. He was the chief judge of the appeals court for the District of Columbia. Many people call that the little Supreme Court. And this was not a case of the Senate deciding to withhold its consent, by the way, as Mitch McConnell said back then. This was a case of the Senate refusing to consider the nominee. So there was no hearing. There was no vote of any kind. He was ignored essentially by the Senate majority as though he had never been appointed.
CORNISH: And as we heard in that audio, the argument that Mitch McConnell made at that time was to say, look; there's going to be a new president; this should be a decision for that president, for that new administration.
ELVING: That's right. And now he is saying, oh, well, that only applies in presidential elections, not in regular elections or, if you will, congressional elections even though the senators are on the ballot this November.
CORNISH: But their job is to advise and consent. It's the president's job to put forth a nominee. So is he all that wrong?
ELVING: Go back to the exact wording of what we just heard Mitch McConnell say. It's the president's constitutional right to nominate, and it is the Senate's constitutional right to act as a check on the president. Now, some of the Republicans of course in the past have said, look at what Joe Biden said back in 1992 about possibly asking the president to forbear and not offer somebody. Well, that was a presidential election year, but the things that Joe Biden said - usually he referred to a political season. And if you're going to use that as a precedent then, it would seem to apply to a political season.
Do we believe that the congressional elections this fall constitute a political season? And do they give people the opportunity to, as Mitch McConnell said, act as a check on the president? I think a lot of people would say yes.
CORNISH: So what leverage, if any, do Democrats have at this point? Can they do anything about this given that they're in the minority?
ELVING: Chuck Schumer, who is the new Senate leader - he was not the leader in 2016 - has said that this is the height of hypocrisy. He has expressed outrage about it. But he's only got a minority of the votes. So the Democrats have very little leverage. They can use it as a motivational tool to their voters in November and say, we have got to get back the majority of the Senate. And while the numbers are against them in November, there are some commentators who think they have some chance.
Certainly we saw that the prospect of filling Scalia's seat back in 2016 was a huge motivator for Republican voters, particularly religious conservatives who otherwise might have had a problem with Donald Trump. This worked for them. The Democrats hope that this might be a motivator for their voters in 2018 the way it was for Republicans in 2016 and will surely be again this fall.
CORNISH: That's NPR's senior editor and correspondent Ron Elving. Ron, thanks so much.
ELVING: Thank you, Audie. Transcript provided by NPR, Copyright NPR.
