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Monday, August 8, 2022

Stephen Breyer’s replacement will have Mitch McConnell to thank

Whoever President Joe Biden names to replace retiring Justice Stephen Breyer will have one person to thank for their seat: Senate Minority Leader Mitch McConnell.

After all, McConnell is the one who changed the way the Senate considers presidents’ Supreme Court nominees. When Antonin Scalia died in February 2016, it was McConnell, then the majority leader, who decided to keep the vacant seat open. As justification, he said, “The nomination should be made by the president who the people elect in the election that is underway right now.” Accordingly, Judge Merrick Garland wasn’t so much as granted a hearing to fill the empty seat in the 11 months left in President Barack Obama’s term.

Activists’ message appears to have finally gotten through to Breyer after months of resistance.

And so, Garland is Biden’s attorney general instead of a sitting member of the court alongside Breyer. McConnell told radio host Hugh Hewitt last year that he regards that obstruction as “the single most consequential thing I’ve done in my time as majority leader of the Senate.” And he suggested that he’d do the same for any potential vacant seat in 2024 if the GOP were to reclaim the majority after the midterms. His fellow Republicans aren’t even willing to guarantee a Biden nominee would be seated in 2023, referring to a nonexistent precedent about confirmations during split control of the White House and Senate.

That looming threat stoked a fire under liberal activists, who have spent the first year of Biden’s term insisting that the 83-year-old Breyer retire while Democrats could still guarantee that the court’s status quo remains intact. Their message appears to have finally gotten through to Breyer after months of resistance.

When Biden does name Breyer’s replacement, he can also thank McConnell for being able to fill the seat at all. After blocking Garland, McConnell went all-in on confirming then-President Donald Trump’s eventual nominee, hinting that he’d do so even if it meant changing the filibuster rules. After Democrats changed the rules in 2013 to get around McConnell constantly requiring a 60-vote threshold, Supreme Court justices were the only presidential appointments still able to be filibustered.

When Trump’s choice, Neil Gorsuch, proved evasive in his answers during his confirmation hearings, 45 Democrats refused to vote to end debate on his nomination. (The blockade of Garland definitely still stung, too.) But Sen. Chuck Schumer, D-N.Y., insisted at the time that there was still room for compromise: “The answer is to change the nominee.”

Instead, McConnell convinced all 52 members of his caucus to change the rules, allowing Gorsuch to be confirmed with a simple majority vote. (Three Democratic senators, including Joe Manchin of West Virginia, wound up voting against changing the rules, but for Gorsuch’s confirmation.) That reduced threshold remained in place for Brett Kavanaugh and Amy Coney Barrett to join the court, leading to the current conservative supermajority. McConnell rushed Barrett’s confirmation process even as early voting had already begun in the 2020 presidential election, completely ignoring his previous arguments just four years earlier.

McConnell’s denial of a seat for Garland proved how far he would go to shape the bench. His likely refusal to even provide a hearing for a Biden nominee should he become majority leader again galvanized Democrats. His use of the “nuclear option” in 2017 made it unnecessary for Breyer’s eventual replacement to get 60 votes in the most polarized Senate environment in history. The liberal wing of the Supreme Court will not be shrunk even further — and it’s all thanks to Mitch McConnell.

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