Mitch McConnell stole a Supreme Court nomination from Barack Obama and gave it to Donald Trump.
Now, the Senate Republican leader is preparing to steal a Supreme Court nomination from Joe Biden and give it to the Republican he presumes will succeed the 46th president.
McConnell appeared on right-wing talker Hugh Hewitt’s radio show Monday and was asked how Republicans—if they win control of the Senate in 2022—would respond to any effort by President Biden to fill a Supreme Court vacancy that occurs in the presidential election of 2024.
“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,” declared the senator from Kentucky.
That’s the same line McConnell used in the presidential election year of 2016 when he blocked Senate consideration of then-President Obama’s nomination of Judge Merrick Garland (now the US attorney general) to fill the vacancy created by the death of conservative Justice Antonin Scalia. Garland never got a hearing, let alone a vote. The seat that the distinguished jurist should have filled was kept vacant until a Republican president, Trump, could nominate the son of Ronald Reagan’s Environmental Protection Agency administrator, Neil Gorsuch, to occupy it as a suitably conservative judicial activist.
McConnell justified this legislative sleight of hand because, he claimed, Supreme Court vacancies should not be filled in election years by “lame duck presidents.”
“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide,” the then–Senate majority leader claimed in March 2016, eight months before the election. “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
The McConnell standard was established. And it remained in place until… the next presidential election.
When a vacancy occurred barely a month before the 2020 election, McConnell pulled out all the stops to secure approval of then-President Trump’s nomination of ultraconservative Judge Amy Coney Barrett to replace liberal Justice Ruth Bader Ginsberg.
McConnell is famously hypocritical when it comes to judicial politics—even if an on-bended-knee media frequently allows the senator to claim otherwise. In 2016, McConnell claimed that blocking the Garland nomination was “about a principle, not a person.”
That was a bald-faced lie.
McConnell’s only principle is that Republican nominations are approved while—wherever possible—Democratic nominations are blocked.
The only question is how far the Republican leader will take things if, as majority leader, he is presented with another opportunity to steal another place on the high court bench from another Democratic president.
The answer, which he hinted at in conversation with Hewitt, is that McConnell plans to pull off an even bigger heist.
Asked what he would do if he were leading the Senate in 2023—not a presidential year—and a high court vacancy occurred, McConnell replied, “We’ll have to wait and see what happens.”
That response breaks new ground. And it points to the importance of the 2022 fight for control of the US Senate.
Thirty-four Senate seats are up for grabs next year.
Both parties are desperate to break the 50-50 tie in the current Senate by flipping a seat.
Republicans have to defend more seats (14) than Democrats (10). In addition, a quarter of all the Republican incumbents who could seek reelection in 2022—Pennsylvania’s Pat Toomey, North Carolina’s Richard Burr, Ohio’s Rob Portman, Missouri’s Roy Blunt, and Alabama’s Richard Shelby—have announced plans to retire rather than face the prospect of a primary race with a Trump-backed challenger or, in at least some cases, a tough November race. Two more Republicans—Iowa’s Chuck Grassley, who is 87, and Wisconsin’s Ron Johnson, who is a delusional conspiracy theorist—are seen as possible quitters. No Democrats are opting out at this point.
The Pennsylvania, North Carolina, a
nd Ohio seats are all seen as potential pick-ups for the Democrats. The Wisconsin seat, whether Johnson runs or not, will be highly competitive. And it is worth noting that Iowa and Missouri have both elected Democrats to statewide posts in the past decade. It is also worth noting that Florida Republican Marco Rubio is running in a state where the last US Senate race, in 2018, was decided by barely 10,000 votes.
So the 2022 map is not a bad one for Democrats.
However, the Democrats have some vulnerable incumbents, including a pair of newly chosen senators who won special elections and now must seek full terms, Georgia’s Raphael Warnock and Arizona’s Mark Kelly, and two first-term incumbents running in states where Biden narrowly prevailed in 2020, New Hampshire’s Maggie Hassan and Nevada’s Catherine Cortez Masto.
Finally, and this is likely to be the weirdest race of 2022, Alaska Senator Lisa Murkowski is running for a fourth term as an independent-minded Republican whom Trump promises to actively oppose. In most states, that would raise the prospect that Murkowski would lose her Republican primary and be out of office. However, Alaska will hold a nonpartisan blanket primary, from which the four top vote-getters will proceed to the general election balloting. Alaskans will then use ranked-choice voting to choose the November winner. It may sound confusing, but the dynamics favor Murkowski, who is well-known, well-liked, and who won as a write-in candidate after losing the 2016 Republican primary.
Murkowski, it’s worth noting, is a supporter of abortion rights who opposed Trump’s nomination of Justice Brett Kavanaugh in 2018 and then sent mixed signals regarding the selection of Judge Coney Barrett in 2020—when the Alaskan voted against a procedural motion to take up the nomination but ultimately voted to confirm Trump’s pick.
Unless Justice Stephen Breyer takes my colleague Elie Mystal’s wise counsel and steps down before the 2022 election, giving Biden and Senate Democrats an opportunity to fill what for better or worse is understood as a “Democratic seat” on the high court, the die will be cast.
The makeup of the Supreme Court will be the existential issue in every 2022 Senate race because McConnell has established a new bottom line that cannot be neglected.
If the Senate flips and the Kentuckian returns as majority leader, even if the GOP advantage is only 51-49, and even if McConnell must rely on Murkowski to maintain it, the likelihood that a Biden nominee will fill a Supreme Court vacancy in 2024 is nil.
As is the likelihood that a Biden pick will advance in 2023.