This is a weird thing to say at a moment when Stephen Breyer is under heavy pressure from the left to retire ASAP, before McConnell somehow ends up as majority leader again and holds open any vacancies until 2025. It’s basically McConnell saying, “You really should listen to them, Steve.”
On the other hand, what else could he say when asked about this in light of the Merrick Garland precedent from 2016? All of the circumstances that led him to hold open that seat would apply in 2024 if he’s back in charge of the Senate by then.
He’d have to block Biden’s nominee. Even if he didn’t want to, having seen his Garland gambit pay off handsomely in the 2016 election and elevation of Neil Gorsuch to the Court, the base would demand it.
— The Recount (@therecount) June 14, 2021
He’s right that Democrats will do the same thing if they end up in a reverse 2016 situation down the road, where they control the Senate and a Republican president is aiming to fill a SCOTUS vacancy in an election year. Whether Chuck Schumer would have done it five years ago, as McConnell did in the Garland case, is unclear. But now that Cocaine Mitch has set that modern precedent, progressives will insist on payback. No president will fill an election-year court vacancy when the Senate is controlled by the other party ever again.
In fact, given the cycle of escalation in partisan warring over judicial nominations, it may soon be that presidents won’t be allowed to fill lower-court vacancies in election years either when the other party has a Senate majority.
So much for 2024. The interesting question is what happens if the vacancy opens in 2023 instead. Hewitt asked McConnell about that today and found him noncommittal:
HH: That’s why I think people who are angst about Justice Breyer stepping down right now are just nuts. If he retired next year after the abortion case, I just don’t see him retiring with Dobbs and the 2nd Amendment on the docket, and possibly affirmative action. Now let me ask you about the key thing, Leader, about the 2023 term. 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. Would they get a fair shot at a hearing, not a radical, but a normal mainstream liberal?
MM: Well, we’d have to wait and see what happens. You mentioned Justice Breyer. I do want to give him a shout-out, though, because he joined what Justice Ginsburg said in 2019 that nine is the right number for the Supreme Court. And I admire him for that. I think even the liberal justices on the Supreme Court have made it clear that court packing is a terrible idea.
There’s no scenario in which Breyer retires in 2023. He’ll either retire in the next few weeks, to spare Dems from worrying about a situation next year in which some Democratic senator dies and his Republican replacement restores McConnell to the majority, or he’ll do it at the end of the 2022 Supreme Court term next June. Breyer saw firsthand the peril in waiting too long when his friend Ruth Bader Ginsburg was replaced by Amy Coney Barrett. He won’t risk a 7-2 Republican majority.
The more interesting question is what happens in 2027 if, say, Ron DeSantis is president and Schumer is in control of the Senate. If a SCOTUS vacancy opens up, would Schumer hold a vote on DeSantis’s nominee?
I think the answer is no. Again, the left would demand vengeance for Garland. The fact that 2027 isn’t an election year would be treated as meaningless, a distinction without a difference from the Garland case in 2016. And if I’m right about that then we have to wonder how close we are to an era where presidents from one party simply can’t get their SCOTUS nominees confirmed when the Senate is controlled by the other party irrespective of when the vacancy opens. President DeSantis could have a justice retire on Inauguration Day 2025 and, if Schumer’s the majority leader, that seat may be held open for his whole term.
There’s one complicating factor for McConnell. It’s highly likely that Biden’s first SCOTUS pick will be historic in that he’s apt to choose a black woman. The frontrunners are Ketanji Brown Jackson, who was just appointed to the D.C. Circuit, and Leondra Kruger of the California Supreme Court. If Breyer were to hang on until 2024 and then retire, McConnell could simply point to the Garland precedent as grounds for not holding a hearing on Jackson or Kruger that year. But if he retired in 2022 or 2023 and McConnell tried to block confirmation then too, Dems would raise hell wanting to know why the would-be first black woman justice was being denied a hearing in a year when the presidency wasn’t on the ballot. I don’t know how comfortable Mitch and his caucus would be in holding that seat open for 18 months or more under those circumstances. McConnell is always thinking about the next election and would fear what it might do for black turnout to have Jackson or Kruger unofficially on the presidential ballot alongside the Democratic nominee.
For what it’s worth, at least one reporter who covers the Supreme Court thinks Breyer will be gone by the end of this term. Here’s AOC telling CNN yesterday that she thinks it’s time for him to hit the road.
Rep. @AOC on whether liberal justice Stephen Breyer should retire from SCOTUS at the end of this term:
“I would probably lean towards yes. But, yes, you’re asking me this question, so I would give more thought to it, but I’m inclined to say yes.” pic.twitter.com/uwoMbmNU7c
— The Recount (@therecount) June 13, 2021