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Mitch McConnell successfully denied one Democratic president’s Supreme Court nominee a hearing and ultimately reshaped the Supreme Court for a generation. He might just run that play once more before it’s all said and done.
During an interview Monday, McConnell waffled on the question of whether he’d allow a “fair” hearing on a Biden Supreme Court nominee as early as 2023. Doing so would further send what’s already the most conservative court in decades deeper into the right-wing. And a scenario where Republicans retake the Senate and then leave the vacancy open until the party regains the presidency is extremely plausible.
The Senate minority leader appeared on conservative commentator Hugh Hewitt’s radio show and was asked if “a Democrat retires at the end of 2023” from the Supreme Court and McConnell is once again Senate Majority Leader, if he’d allow “a fair shot on a hearing, not a radical, but a mainstream liberal.”
“Well, we’d have to wait and see what happens,” McConnell replied, before going on to praise 82-year-old Stephen Breyer and other liberals on the court for not supporting calls from the left to expand the size of the court. During the interview, McConnell also reiterated that it would be “highly unlikely” he’d confirm a Biden nominee in 2024 while the next presidential campaign is underway.
While McConnell’s statement is non-committal, it leaves the door open to yet another new precedent in the Senate where one party has to control both the presidency and the Senate to fill vacancies on the highest court.
Democrats were predictably outraged. “Of course Mitch McConnell will try to steal another Supreme Court seat if he has the chance,” tweeted Oregon Sen. Jeff Merkley.
In 2016, the Supreme Court’s conservative anchor Antonin Scalia suddenly died, and McConnell and Senate Republicans refused to hold a hearing for then-President Obama’s Supreme Court nominee, Merrick Garland. Garland was widely seen as a centrist who had been easily confirmed to the Court of Appeals with broad GOP support, but the vacancy remained for more than a year in hopes of the Republican Party winning the presidential election.
It did, and Neil Gorsuch was confirmed in April 2017 after McConnell and the Senate GOP voted to end the filibuster for Supreme Court nominees, meaning nominees to the Supreme Court could be passed on a party-line vote. On Monday, McConnell called blocking Garland “the single most consequential thing I’ve done in my time as majority leader of the Senate.”
In 2018, prior to the midterm elections, Justice Anthony Kennedy—long seen as the court’s “swing vote”—retired and was replaced by Brett Kavanaugh, after a confirmation process which saw Kavanaugh accused of multiple instances of sexual assault.
Then last year, McConnell and the Senate GOP raced to fill the vacancy on the court left by the death of 87-year-old Ruth Bader Ginsburg. McConnell argued that because Republicans had won the Senate in 2018, they were entitled to fill the vacancy, as ”no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”
Soon after, conservative Amy Coney Barrett was confirmed to replace her. The Supreme Court now has a 6-3 conservative majority that could very well effectively end the constitutional right to an abortion next year.
It’s possible that Republicans could retake the Senate even before the 2022 midterms. The Democrats currently control the Senate only with the tiebreaker vote of Vice President Kamala Harris, and the case of Massachusetts in 2010 haunts Democrats to this day: If a Democratic senator is forced to step down or dies, their replacement could very well tilt the balance of the Senate back to the GOP.
Several vulnerable Democratic incumbents are also up for re-election in 2022, including Sen. Mark Kelly in Arizona and Sen. Raphael Warnock in Georgia, and GOP-controlled states are increasingly restricting access to voting on the basis of unproven fraud claims by former President Donald Trump and his allies.
Breyer, one of the three liberals remaining on the court, turns 83 in August and has so far resisted calls to step down. During a lecture at Harvard Law School in April named for Scalia, Breyer spoke out against calls to expand the court and said that once judges swear an oath, they become “loyal to the rule of law, not to the political party that helped to secure their appointment.”
“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish,” Breyer said.
Rep. Mondaire Jones, a progressive freshman who publicly called for Breyer to retire earlier this year, reiterated his support to replace Breyer Monday following McConnell’s statement.
“When I became the first person in Congress to call for Justice Breyer to retire now, while President Biden can still appoint a successor, some people asked whether it was necessary,” he tweeted. “Yes. Yes, it is.”