Senate Minority Leader Mitch McConnell says it would be “highly unlikely” that he’d allow President Biden to fill a Supreme Court vacancy in 2024 if Republicans were to take control of the chamber.
Appearing Monday on conservative radio host Hugh Hewitt’s show, McConnell was presented with a hypothetical of a Supreme Court vacancy after a GOP victory in the 2022 midterm elections. The scenario was based on what occurred in 2016, following the death of Supreme Court Justice Antonin Scalia. At that time, Republicans controlled the Senate, having regained power in the 2014 midterms, and McConnell, then the majority leader, refused to consider President Barack Obama’s nominee, Merrick Garland, to fill Scalia’s seat.
“If you regain the majority in 2022 for the Republicans … would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?” Hewitt asked.
“Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” McConnell replied. “So I think it’s highly unlikely. In fact, no, I don’t think either party, if it controlled [the Senate], if it were [a] different [party] from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president.”
When asked if he would consider a nominee from Biden in 2023, McConnell wouldn’t commit even to that, saying, “Well, we’d have to wait and see what happens.”
Democrats currently hold power in the Senate only due to the vice presidential tiebreaker, and they are defending seats in a number of states that have been close in recent elections, including Arizona, Georgia, New Hamphsire and Nevada. If any of those seats were to turn red without a corresponding flip of a GOP seat — top targets for Democrats include North Carolina, Pennsylvania and Wisconsin — McConnell would regain control of the chamber.
The current 6-3 advantage held by conservatives on the Supreme Court is in part due to McConnell’s maneuvering. In 2016, he refused to even hold a hearing for Garland, angering Democrats. (Supreme Court nominees must be confirmed by a simple majority in the Senate. And the majority leader decides which votes are taken — or not taken, in the case of Garland.)
After Donald Trump took office, the vacant seat was filled by his appointee, Neil Gorsuch. McConnell successfully backed Brett Kavanaugh’s contentious nomination following Justice Anthony Kennedy’s 2018 retirement. When Justice Ruth Bader Ginsburg died last September, McConnell pushed through the confirmation of Trump appointee Amy Coney Barrett the following month.
Garland was confirmed as Biden’s attorney general earlier this year after more than two decades serving as a circuit judge of the Court of Appeals for the District of Columbia Circuit.
While the White House and moderate Democratic senators have continued infrastructure negotiations with Republicans, McConnell stated last month that 100 percent of his focus was on stopping Biden’s agenda. Understanding the precarious position of their current Senate majority, a number of Democrats have urged 82-year-old liberal Justice Stephen Breyer to retire, but Breyer has so far resisted the calls.
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