Jurisprudence
Anna Moneymaker/Getty Images
On Monday, Senate Minority Leader Mitch McConnell told conservative radio host Hugh Hewitt that he would refuse to let President Joe Biden fill a Supreme Court seat in 2024 if Republicans win the Senate next year. McConnell also suggested that he would not let Biden fill a Supreme Court vacancy in 2023, even if the president nominated “a normal mainstream liberal.” These comments are not remotely surprising. The Republican Party has outsourced much of its agenda to the federal judiciary, a strategy that requires its lawmakers to ruthlessly extinguish Democrats’ influence over the courts. To that end, a GOP-controlled Senate will never again confirm a Democratic president’s Supreme Court nominee. Not in an election year or any other year. Not in your lifetime or mine. Never.
McConnell played slightly coy when discussing the possibility of a Supreme Court confirmation in 2023, telling Hewitt: “Well, we’d have to wait and see what happens.” But anyone who seriously believes a Republican-controlled Senate would confirm a Biden nominee that year—or even hold hearings on one—is deluding themselves. McConnell’s approach to judicial confirmations reflects two core principles of the modern GOP: first, that only the federal judiciary can impose key items in the Republican Party platform that are too unpopular to pass through the democratic process; and second, that only conservative judges faithfully apply the Constitution, whereas liberals make it up as they go along.
A daily email update of the stories you need to read right now.
These principles might appear to contradict each other. But Republicans have harmonized them by convincing themselves that their platform perfectly reflects the Constitution. Thus, in the eyes of the GOP, when liberal judges issue decisions that align with Democrats’ priorities, they are judicial activists who are betraying their duty to apply the law as written. When conservative judges issue decisions that align with Republicans’ priorities, by contrast, they are independent jurists who are honoring the Framers’ design.
This design, according to Republicans, includes a number of policy items that the GOP has struggled to implement through legislation due to lack of popular support. Consider gun laws. Most Republican politicians oppose bans on assault weapons and support the right to carry a concealed firearm in public. But Republicans have failed to repeal the assault weapon bans currently on the books in seven states and the District of Columbia. They have also failed to repeal the strict limits on concealed carry that remain in nine states.
Republicans no longer need to push these policies democratically, though, because they have stacked the federal courts with Second Amendment enthusiasts who are keen to impose these policies by judicial fiat. Indeed, the Supreme Court appears poised to strike down stringent restrictions on concealed carry, thanks to the votes of President Donald Trump’s nominees. And earlier this month, a conservative federal judge struck down California’s assault weapon ban. Further, an ever-growing number of Trump’s judicial nominees have questioned the constitutionality of other gun laws, including large-capacity magazine bans, limits on handgun transfers, and possession of firearms by people who were convicted of felonies or involuntarily committed.
Republicans did not pass any major gun rights legislation under Trump, but they didn’t need to: Confirming 234 federal judges, most of them Second Amendment zealots, is a far more effective and enduring attack on gun safety laws than any mere bill could ever be. And this story will continue to play out across a broad range of GOP policy priorities, from abolishing affirmative action to hobbling environmental protections to shredding voting rights.
This plan—filling the judiciary with partisans and ideologues who will implement GOP priorities from the bench—might seem inconsistent with the right’s incessant complaints of “judicial activism.” Republicans, however, have formulated another principle to square this circle: They insist that conservative judges simply apply the law and the Constitution as written, while liberal judges inflict their policy preferences on the people in the guise of neutral judging. When liberal judges strike down laws that prohibit same-sex marriage, Republicans assert, that’s lawless judicial activism. When conservative judges strike down laws that protect voting rights, that’s just enforcing the Constitution. If you believe that progressive jurisprudence is fundamentally illegitimate, then you should do everything in your power to keep liberal judges off the bench. And that is what McConnell, along with most of his caucus, has sworn to do.
Democrats have not adopted McConnell’s cutthroat approach to the courts.
From this ideological vantage point, Republicans’ crusade against Democrats’ judicial nominees is not only acceptable but downright noble. The GOP sees itself as the defender of the Constitution, safeguarding the judiciary from liberal lunatics by any means necessary. This tactic precedes McConnell’s blockade of Merrick Garland in 2016, and it transcends the Supreme Court. The Republican-controlled Senate confirmed just two of President Barack Obama’s nominees to the federal courts of appeals in his final two years. McConnell refused even to consider most of these nominees, holding seats vacant for years.
And the senator was not punished for this behavior. To the contrary, his gambit succeeded: Republicans held the Senate and captured the presidency, allowing Trump to fill more than 100 seats that opened under Obama. In light of this track record, it seems extremely unlikely that McConnell will confirm any of Biden’s nominees to the federal appeals courts if Republicans take the Senate in 2022. In truth, it is hard to envision a GOP-controlled Senate ever confirming another appeals court nominee put forth by a Democratic president. Now that all-out obstruction has proven so successful and Democrats have unilaterally disarmed, there is no motivation for the GOP to change its behavior. The enormous and consistent structural tilt of the Senate toward the GOP means that there will probably never be any reason for Republicans to compromise.
Again, part of the problem is that Democrats have not adopted McConnell’s cutthroat approach to the courts. They confirmed 10 of President George W. Bush’s nominees to the federal courts of appeals after taking the Senate in 2006—five times more than Republicans confirmed after taking the Senate in 2014. Most Democratic lawmakers still oppose expanding the Supreme Court to dilute the influence of justices who were appointed after McConnell changed the rules of the game, blocking Garland in Obama’s final months in office and confirming Amy Coney Barrett in Trump’s final weeks. And even judges nominated by Democrats seem oddly naive about the partisan reality of judicial confirmations today. Exhibit A, of course, is Justice Stephen Breyer, who is reportedly resisting calls for his retirement despite the fact that Democrats will lose the opportunity to replace him if just one of their elderly senators in a state with a Republican governor gives up the ghost.
Republicans have nothing to lose and everything to gain by blockading Biden’s judicial nominees. Already, GOP senators are concocting ridiculous reasons to oppose them. Ketanji Brown Jackson, whom Biden nominated to a federal appeals court, received just three Republican votes to advance her nomination to debate on Thursday; in 2013, she was confirmed to a district court by a voice vote. Jackson’s qualifications haven’t changed over the last eight years, but the circumstances have: She is now a top contender to fill Breyer’s seat (if he ever steps down). The overwhelming majority of Republican senators who voted against her last week were sending an unmistakable message that they stand with McConnell on judges. Forget 2024 and 2023—if the Senate flipped tomorrow and Breyer retired the day after, McConnell or a successor would keep his seat vacant for as long as a Democrat resides in the White House, or as long as Republicans were to hold the Senate.
There may be nothing Democrats will be able to do about such a blockade if and when it happens. That’s why they need to act on the courts now. Biden is already naming nominees at a commendable pace; Senate Majority Leader Chuck Schumer has cranked the confirmation machine into high gear; and left-leaning judges throughout the judiciary are stepping aside to ensure that a Democrat can replace them. Only Breyer can decide when to retire. But Democrats can help him see the light by filling every vacancy with the grave urgency it deserves.
