The Senate minority leader, Mitch McConnell, said on Monday it was “highly unlikely” he would allow Joe Biden to fill any supreme court vacancy arising in 2024, the year of the next presidential election, if Republicans had regained control of the chamber.
“I think it’s highly unlikely – in fact, no, I don’t think either party, if it were different from the president, would confirm a supreme court nominee in the middle of an election,” McConnell told Hugh Hewitt, a rightwing radio host.
McConnell famously blocked Barack Obama from filling a vacancy in 2016, denying Merrick Garland, now Biden’s attorney general, even a hearing after he was nominated to fill the seat vacated by the death of Antonin Scalia.
McConnell said that was because no new justice should be seated in an election year – a position he reversed with alacrity in 2020, on the death of Ruth Bader Ginsburg two months before polling day.
Ginsburg, a liberal lion, was replaced by the hardline Catholic Amy Coney Barrett, tipping the court 6-3 in conservatives’ favour. Major rulings are expected on abortion rights, gun control, affirmative action and more.
McConnell now says no new justice should be seated in an election year when the White House and the Senate are controlled by different parties – a position he restated to Hewitt.
Asked by Hewitt what would happen if a vacancy arose in 2023 with Republicans in control of the Senate, McConnell said: “We’ll have to wait and see what happens.”
McConnell’s hardball tactics have contributed to his status as a hate figure among progressives. On Monday, much online reaction to his remarks focused on beseeching Stephen Breyer, a liberal justice and at 82 the oldest on the current court, to retire while Biden is in the White House and Democrats hold the Senate.
Breyer has shown little inclination to do so. Last month, he angered some on the left by telling high school and middle school students the key to working with conservatives was to talk to them more.
Among progressives, support is growing for countering conservative dominance of the court by increasing the number of justices. Republicans are stringently opposed.
McConnell told Hewitt he wanted to give Breyer “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.”