Senate Minority Leader Mitch McConnell (R-Ky.) said Monday that it’s “highly unlikely” he would allow President Joe Biden to fill a Supreme Court vacancy in 2024 if Republicans regain the Senate — and possibly even earlier.
“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 said in an interview with conservative radio host Hugh Hewitt.
As Senate majority leader in 2016, McConnell prevented President Barack Obama from appointing a successor to former Justice Antonin Scalia, who died suddenly in February of that year. Obama’s nominee, Merrick Garland, who is now serving as Biden’s attorney general, didn’t even get a hearing in the Senate Judiciary Committee, much less a vote. McConnell argued at the time that Supreme Court vacancies shouldn’t be filled during a presidential election year.
In late 2020, however, shortly before the November presidential election, Republicans raced to confirm Justice Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg. The rule on election-year high court vacancies that Republicans set in 2016, McConnell explained, didn’t apply in 2020 because one party now controlled both the White House and the Senate.
McConnell called the decision to hold open a Supreme Court seat for eight months “the single most consequential thing I’ve done in my time as majority leader in the Senate.” In the end, Republicans did it because they could, not because of any contrived ‘precedent.’ The balance of the court now tilts 6-3 to the conservatives and likely will for decades.
Some progressive groups and activists have been calling on Supreme Court Justice Stephen Breyer, 82, to retire this year so Democrats can appoint his successor while they control both the Senate and the White House. The liberal justice has given no indication of his future on the court, and Democratic senators have, at least in public, been unwilling to urge him to step down.
The window Democrats have to potentially fill a Supreme Court vacancy may be even narrower than they think. If Republicans win control of the Senate next year, which is considered a possibility, they could once again deny a Democratic president the chance to fill a high court seat ― maybe even in 2023, according to McConnell’s interview with Hewitt.
“Again, if you were back as the Senate Republican Leader, and I hope you are, and a Democrat retires at the end of 2023, and there are 18 months, that would be the Anthony Kennedy precedent,” Hewitt told McConnell. “Would they get a fair shot at a hearing, not a radical, but a normal mainstream liberal?”
“Well, we’d have to wait and see what happens,” McConnell replied.