It's difficult to say with confidence which party will have a majority in the next Congress — a lot will happen between now and November 2022 — but it's not too early to consider what Republicans would do with a Senate majority. On the contrary, it's the sort of thing voters ought to consider before casting their ballots.
With this in mind, a reporter asked Senate Minority Leader Mitch McConnell yesterday whether he'd commit to a vote on a U.S. Supreme Court nominee in 2023, if there's a vacancy during a GOP majority. The Kentucky Republican didn't want to talk about it:
"I'm not going to start talking about what might happen if I'm the majority leader the last two years of [President Biden's] current term. I'm just not going to comment."
Part of the problem is, he's already commented.
Over the summer, the Senate GOP leader all but ruled out the possibility of confirming a high court nominee in 2024, if he's in control of the chamber. McConnell told Hugh Hewitt in June, "[N]o, I don't think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election."
Three months later, the Kentuckian wouldn't rule out blocking a Biden nominee in 2023, either.
As we discussed at the time, it's far from clear when or whether there might be a vacancy on the Supreme Court, but it's hardly a stretch to imagine such a scenario at some point over the course of the next three years.
With Senate Majority Leader Chuck Schumer in control of the chamber, the Democratic White House's nominee would almost certainly be treated fairly. With McConnell in charge, a very different picture emerges.
The problem is not just what the Republican senator has said on the subject, it's also what he's done.
It was in February 2016 when then-Justice Antonin Scalia died unexpectedly. Then-President Barack Obama nominated Merrick Garland, a center-left, compromise jurist — who'd received praise from Senate Republicans — to fill the vacancy, which in turn opened the door to a historic opportunity to stop the high court's drift to the right.
McConnell instead decided to impose an unprecedented high-court blockade for nearly a year, hoping that Americans might elect a Republican president and Republican Congress despite the GOP's abusive tactics.
It worked: McConnell effectively stole a Supreme Court seat from one administration and handed it to another. He's repeatedly boasted about the pride he takes in having executed the transgressive scheme.
Nearly four years later, McConnell and Senate Republicans confirmed a Supreme Court nominee eight days before Election Day — in the middle of an election in which millions of Americans had already cast ballots via early voting — but he's already concluded that if given the opportunity, he'll do the opposite in response to possible nominees from Biden.
The point is not just about hypocrisy and the dangers of McConnell's maximalist partisan tactics. I continue to believe the more salient point is the focus on Justice Stephen Breyer.
The 83-year-old center-left justice has resisted calls for his retirement, suggesting that he's so indifferent toward political considerations that Biden's presidency will have no bearing on when he departs from the high court.
But if Breyer assumes that a Republican-led Senate would gladly confirm a Biden nominee for the Supreme Court, McConnell has indicated otherwise.
The GOP hasn't exactly been subtle on this point. The party not only kept a Supreme Court seat vacant for 11 months in 2016 for purely partisan reasons, some Senate Republicans suggested that they'd keep Scalia's seat empty indefinitely until their party controlled the White House again.
Breyer can bury his head in the sand, but the more responsible course would be to take McConnell's rhetoric seriously, while prioritizing his legacy and our collective future.