Sen. Mitch McConnell changed the tradition and approach of the Senate when he left the vacancy created by the death of Supreme Court Justice Antonin Scalia open until after the presidential election in 2016, and Senate Minority Whip Dick Durbin said Thursday that McConnell should also let the American people speak when replacing retiring Justice Anthony Kennedy.
"Senator McConnell was hoping for a Republican president," the Illinois Democrat told MSNBC's "Morning Joe." "It happened. So [Merrick] Garland, a well-qualified man, was not allowed to be on the Supreme Court."
Durbin asked if McConnell would stand by the same reasoning that he gave then, that he wanted to allow the American people to speak through their votes about who they want to be in the Court.
"Already, he's told us he's not going to be consistent at all on this," said Durbin. "If it helps his party, he's going to move forward...under the rules of the Judiciary Committee and the rules of the Senate, the majority basically does rule. And although we have an opportunity to ask questions and we should of whoever the nominee may be, the notion that we can stop them with 49 votes is just not in the cards."
Democrats, said Durbin, "don't have the power" to play hardball the way Republicans did over Gorsuch.
"If we had the power and the authority to make those decisions, it's one thing," said Durbin. "But under the rules, under the rules with Justice [Neil] Gorsuch, in a matter of three months or so, he went from being nominated by the White House to approved by the United States Senate. In the meantime, there was vetting, investigation, hearing, questions, votes and committee, consideration on the floor. But it was on a path where a majority controlled the outcome and at this point we don't have the majority."
He said he hasn't yet spoken with any Republican senators about voting with the Democratic caucus, but it's only been a day since Kennedy announced his retirement.
"I think there are some Republican senators who are very conscientious when it comes to these decisions," said Durbin. "If the nominee is extreme, they will speak up. It's an historic decision."
Durbin added that he thought the SCOTUS decision to uphold President Donald Trump's travel ban was "awful." "I don't believe the Muslim travel ban was consistent either. I thought the decision by the conservative majority of the court was wrong and one we'll come to regret."
Action on Roe vs. Wade also comes to mind, said Durbin, as that's an issue that's divided Americans for decades.
"I thought that we were near some sort of a balance in terms of our approach to this," said Durbin. "If there's an upset, all bets are off. There's no telling what will come with it in a very conservative court in the issue of reproductive rights."
Meanwhile, Democrats must be honest with voters and concede that a Trump nominee is likely to be approved.
"It boils down to a very basic calculation, 49 Democrats and 51 Republicans," said Durbin. "If [Sen.] John McCain is not here, 49-50. But one vote's enough."
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