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McConnell Won’t Commit to a Hearing for Biden SCOTUS Nominees If GOP Retakes the Senate

The new normal is whatever he says it is.
by Jim Swift
June 14, 2021
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(The Bulwark / Photos: GettyImages / Shutterstock)

Mitch McConnell is in an awkward spot, having lost the Senate majority due to Donald Trump’s failed attempt to overturn the election. He’s 79 and could retire like Harry Reid did. But if he’s still a member of the Senate in two years he hopes he’ll be handed the reins of power again.

Appearing on Hugh Hewitt’s talk show on Monday, McConnell was asked about what he’d do if Republicans win back the Senate in 2022. And McConnell had this to say about a possible Supreme Court nomination, if he is the majority leader come January 2023:

HEWITT: Now let me ask you about the key thing, leader, about the 2023 term. Again, if you were back as the Senate Republican leader, and I hope you are, and a Democrat retires at the end of 2023 . . . and there are 18 months . . . that would be the Anthony Kennedy precedent. Would they get a fair shot at a hearing? Not a radical, but a normal mainstream liberal.

MCCONNELL: Well, we’d have to wait to see what happens. You mentioned Justice Breyer, I do want to give him a shout-out, though, because he joins 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.

Read that again: If there’s a vacancy in 2023, Mitch McConnell will not stipulate that, as a matter of course, a Biden SCOTUS nominee will get a hearing.

Again: We’re talking about 2023.

But what about 2024? Here’s what McConnell has to say:

HEWITT: If you regain the majority in 2022 for the Republicans, and there’s a very good chance of that happening, and I’ll come back to the individual races in a second, would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?

MCCONNELL: 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. So, I think it’s highly unlikely, in fact, no, I don’t think either party if it controlled . . . if it were different 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. And that’s why we went ahead with it.

Listen here:

The Republicans’ Merrick Garland strategy, it seems, is poised for expansion. For a senator who rarely talks to the press in the Capitol, telegraphing these hypotheticals is atypical for McConnell—and a sign of things to come.

Jim Swift

Jim Swift is a senior editor at The Bulwark.