Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBipartisan infrastructure deal takes fire from left and right Jayapal to Dems: Ditch bipartisanship, go it alone on infrastructure MORE (R-Ky.) is throwing fuel on a simmering fire over the Supreme Court by reviving a long-running war over the judiciary heading into an election year.
McConnell’s pledge on Monday that a GOP-controlled Senate would block a potential Biden nominee in 2024 comes at a critical moment for the Supreme Court.
Observers are waiting to see how an increasingly emboldened 6-3 conservative majority comes down on key decisions in the final weeks of the term and if the justices take up cases that would put them in the middle of fights crucial to the right in the months leading up to the 2022 midterm elections.
McConnell’s remarks sparked immediate backlash from progressives, prompting new calls to expand the Supreme Court and for 82-year-old Justice Stephen BreyerStephen BreyerSenate confirms Garland's successor to appeals court McConnell signals GOP would block Biden Supreme Court pick in '24 Sunday shows - Biden foreign policy in focus MORE to retire while Democrats control the Senate.
“Mitch McConnell is already foreshadowing that he’ll steal a 3rd Supreme Court seat if he gets the chance. He’s done it before, and he’ll do it again. We need to expand the Supreme Court,” said Sen. Ed MarkeyEd MarkeyClimate progressives launch first action against Biden amid growing frustration Senate Democrats urge Google to conduct racial equity audit Senate climate advocates start digging in on infrastructure goals MORE (D-Mass.).
Aaron Belkin, director of Take Back the Court, added, “Steal one seat, shame on you. Steal a second seat, shame on us.
“Announce out loud that you are going to steal a third seat, recognize there’s no hope for our democracy unless we expand the Court.”
Breyer has given little indication that he would retire at the end of this term, which wraps up before July 4. But if he does step down, it would be the fifth Supreme Court battle in the past six years and keep the high court at the center of increasingly vitriolic fights on Capitol Hill.
Progressives seized on McConnell’s remarks as a new reason for Breyer to retire, arguing that the comments effectively set a deadline for when Biden would be able to get a Supreme Court nominee confirmed if a vacancy arises.
“It’s actually helpful for Breyer to hear this from McConnell,” Todd Tucker, director of governance studies at the liberal Roosevelt Institute, tweeted, adding that progressive group We Demand Justice “should flood his mailbox with this and Mitch’s face on a postcard every day until he retires.”
Robert Cruickshank, campaign director for Demand Progress, added, “If Breyer refuses to retire, he’s not making some noble statement about the judiciary. He is saying he wants Mitch McConnell to handpick his replacement.”
Breyer is the oldest Supreme Court justice by roughly a decade, with Clarence ThomasClarence ThomasSupreme Court unanimously rules certain crack offenders not eligible for resentencing Supreme Court confounding its partisan critics Gorsuch, Thomas join liberal justices in siding with criminal defendant MORE and Samuel AlitoSamuel AlitoGorsuch, Thomas join liberal justices in siding with criminal defendant Supreme Court narrows cybercrime law Overnight Health Care: WHO renaming COVID-19 variants | Moderna applies for full vaccine approval | 1.1M NY vaccine passports downloaded since launch MORE, the two most conservative members of the bench, being the next closest in age. The likelihood of either one of them retiring this year is slim given that Democrats, who control both the White House and Senate, would be able to name their successor and return to a 5-4 court.
The latest skirmish is reviving memories of 2016, when McConnell refused to give Merrick GarlandMerrick GarlandHouse Judiciary to probe DOJ's seizure of data from lawmakers, journalists Senate confirms Garland's successor to appeals court Outrage grows as Justice seeks to contain subpoena fallout MORE, then-President Obama’s third Supreme Court nominee, a hearing or a vote in the GOP-controlled Senate following Justice Antonin Scalia’s death in February of that year.
The Republican leader then infuriated Democrats, and faced charges of flip-flopping, when Republicans confirmed Brett KavanaughBrett Michael KavanaughSupreme Court confounding its partisan critics Gorsuch, Thomas join liberal justices in siding with criminal defendant Alyssa Milano says she could 'potentially run' for House in 2024 MORE in 2018 ahead of the midterms and Amy Coney BarrettAmy Coney BarrettMcConnell signals GOP would block Biden Supreme Court pick in '24 Supreme Court confounding its partisan critics Progressives want to tighten screws beyond Manchin and Sinema MORE just days before the 2020 presidential election.
McConnell, on Monday, called the 2016 decision “the single most consequential thing I’ve done in my time as majority leader of the Senate.” He has explained his decision by arguing that the determining factor is whether the same party controls the Senate and the White House. If so, he’s said, a nomination should proceed.
McConnell is now vowing that Republicans, if they are able to win back control of the Senate in 2022, would run a similar playbook against Biden in 2024 as they did against Obama, refusing to give a potential Supreme Court nominee a hearing or a vote.
“I think it’s highly unlikely — in fact, no, I don’t think either party, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election,” McConnell told radio host Hugh Hewitt.
And, in what would amount to a moving of the goalposts that would further reshape any future fights over the Supreme Court, McConnell wouldn’t commit to a Republican-controlled Senate taking up a nominee if a vacancy occurred in mid-2023.
“We’ll have to wait and see what happens,” McConnell said, asked by Hewitt if the nominee would get a fair shot.
If Republicans take back the majority next year, that would give them control over which of Biden’s nominees get confirmed for the next two years. In addition to Garland, Senate Republicans either slow-walked or refused to move scores of nominees during Obama’s second term, while moving at a breakneck pace during the Trump administration to confirm more than 230 judicial slots.
Democrats are fighting to hold on to, or expand, their 50-50 majority during the midterms. Republicans are defending 20 seats, compared to 14 for Democrats, including four open seats and two seats in states won by Biden. They are also hoping to unseat Democrats in Georgia, Arizona and New Hampshire — all states carried by Biden.
Senate Judiciary Committee Chairman Dick DurbinDick DurbinBipartisan infrastructure deal takes fire from left and right Senate Judiciary begins investigation into DOJ lawmaker subpoenas Garland pledges review of DOJ policies amid controversy MORE (D-Ill.) appeared unsurprised by McConnell’s position, arguing it was a sign of the steps the GOP leader was willing to take to try to ensure that Republican administrations filled crucial court seats.
“Are you surprised? I mean he would change the rules a third time if he could to make sure that they get the next Supreme Court justice,” he said. “He’s not much for precedent and tradition when it doesn’t serve him politically.”