McConnell isn’t even pretending he would consider a Biden nominee to the Supreme Court should Republicans control the Senate the next time a vacancy occurs:
And then there was the death of Antonin Scalia. Obama nominated Merrick Garland to replace Scalia after his death in February 2016 but McConnell, then majority leader, simply declined to let the Senate consider the nomination. When Trump came to office, he nominated Neal Gorsuch to replace Scalia and McConnell moved quickly toward confirmation.
When Ruth Bader Ginsburg died shortly before the 2020 election, McConnell’s argument against replacing Scalia — that the voters should decide who they want to be president before the president nominates a justice — was thrown out the window with a wink. Trump got another justice, thanks to McConnell.
In January, McConnell’s Republicans lost the majority and, with it, the ability to direct judicial confirmations. But asked on Monday what playbook he would apply were a Supreme Court vacancy to open up in 2023 if Republicans retook the Senate, McConnell’s answer was, as always “probably the one that gives the right more power.”
It would be “highly unlikely” that a Republican-controlled Senate would consider a Biden appointment in 2024, McConnell assured conservative radio host Hugh Hewitt, citing the argument he and his allies invented last year that when the senate and presidency were under the control of different parties this was an important standard to uphold. Hewitt pushed McConnell a bit on this: would that hold even 18 months out from an election — that is, for most of the second half of a president’s term?
“We’d have to wait and see what happens,” McConnell replied.
Again, expert political observers might suggest that this indicates a general reticence from McConnell to work with his political opponents.
Even more remarkable is the Stephen Breyers and Joe Manchins who refuse to accept what McConnell is explicitly telling them again and again through both his words and actions.
As Adam Cohen says with respect to the former:
In April, United States Supreme Court Justice Stephen Breyer delivered a lecture at Harvard Law School with the less-than-scintillating title “The Authority of the Court and the Peril of Politics.” He argued strongly—and, at least in my view, unconvincingly—that Supreme Court justices are above politics. Breyer insisted that “jurisprudential differences,” not political ones, “account for most, perhaps almost all, of judicial disagreements.” As he sees it, the justices are essentially technocrats who methodically use their preferred legal tools to decide how cases should come out.
This idea is a fairy tale America likes to tell itself. If this story were true—if justices were mere technocrats—presidents filling a Court vacancy would appoint the best legal scholars and judges without considering their politics. What presidents of both parties actually do, as George W. Bush did when choosing Samuel Alito and as Barack Obama did when selecting Sonia Sotomayor, is draw up lists of candidates vetted for conservative or liberal purity. Donald Trump expressly chose Amy Coney Barrett and Brett Kavanaugh for their right-wing bona fides. Are we really to believe nominees suddenly abandon their views when they get to the Court?
In most circumstances, a mistaken law-school lecturer would be of little consequence. (I quickly lost track of how many wrong things I was told in law school.) Breyer, however, is not merely an academic expounder of ideas—he is one-ninth of the Supreme Court and one-third of its liberal bloc, and his words have unusual force. For that reason, his outlook is not only misguided but dangerous, because it clouds Americans’ understanding of how the Court actually works, and the substantial harm it has been doing, particularly to the poorest and most vulnerable members of society.
We’ll know within a month how strongly committed Breyer is to the belief that futile gestures at maintaining a fairy tale virtually nobody actually believes is more important than the public interest.