An issue that has been mostly absent from this year’s Senate campaigns — the fate of the Supreme Court — suddenly erupted Monday after Sen. John McCain, R-Ariz., indicated during a talk-radio appearance that Republicans would move to block any high-court nominee made by a President Hillary Clinton should the Democratic nominee win.
McCain made his remarks on WPHT-AM radio in Philadelphia, during an interview in support for fellow Sen. Patrick Toomey, R-Pa.: “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” he said. “I promise you. This is where we need the majority and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered.”
The remark immediately raised hackles of Democrats who have complained about GOP treatment of President Obama‘s judicial nominees — most prominently, Supreme Court nominee Merrick Garland, whose nomination has sat in limbo for more than six months after Senate Majority Leader Mitch McConnell, R-Ky., resolved to save the pending vacancy for the next president.
McCain’s comments raised the prospect that the vacancy could extend much longer than that, particularly if Republicans maintain their control of the Senate. Even if Democrats win the majority, they would still need a handful of GOP votes to confirm any Supreme Court nominee — current Senate rules require 60 senators to close debate and move to an up-or-down vote.
If Republican were in fact “united against any Supreme Court nominee that Hillary Clinton . . . would put up,” that could mean the Supreme Court would remain an eight-member body indefinitely — and perhaps force a change to Senate rules allowing for simple-majority confirmation of Supreme Court nominees.
McCain’s office issued a statement Monday afternoon backing off his pledge of blanket opposition.
“Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees,” spokeswoman Rachel Dean said. “That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”
Later in the day, during a campaign stop in Chandler, Arizona, McCain avoided the more strident position when responding to a question from local business officials about the court.
But the 30-year incumbent, facing his most difficult election since his first race in 1986, made clear that he hopes the issue of defending the court from a Democratic Senate majority and president is something that should galvanize conservatives.
“There’s estimates as many as three vacancies could be coming over the next three years,” he said. “That can affect us for decades. So it’s my passionate argument for keeping the United States Senate in Republican hands, as a check and balance to whoever the president of the United States is.”
After a second stop Monday, with the leaders of the Arizona Farm Bureau, McCain said in an interview that a Republican Senate would temper the types of justices Clinton could get confirmed as president — not that it would prevent the confirmation of any Clinton nominee.
“Hillary Clinton has supported all the liberal nominees that have come before the Senate when she was in the Senate,” he said.
During Clinton’s eight years as senator, President George W. Bush nominated two Supreme Court justices, John Roberts and Samuel Alito, both of whom she opposed. As senator she held sway over which lower-level federal judges from New York were nominated and confirmed.
McCain’s Democratic opponent, Rep. Ann Kirkpatrick, trailing in recent polls, slammed the five-term incumbent for advocating “pure, partisan politics at its worst” and “promising broken government if Trump doesn’t win.”
After McCain walked his comments back, Kirkpatrick spokesman D.B. Mitchell said the retraction did not ring true: “he said what he meant, and meant what he said.”
And the retreat did not stop the Democratic National Committee from emailing a fundraising appeal seizing on his original comments.
“The GOP has already caused President Obama’s nominee to have the longest Supreme Court wait in our nation’s history. If Sen. McCain is to be believed, they’re willing to keep up their shameful behavior for years,” read the email, which asked for a donation of $10 or more.