Senate Minority Leader Mitch McConnell said on Monday that if his party regains the majority in 2022 it’s “highly unlikely” he would let President Joe Biden confirm a Supreme Court vacancy if one opened up in 2024, and was non-committal when asked about an opening at the end of 2023.
“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,” McConnell said on the Hugh Hewitt radio program Monday.
When asked what he would do if his party controlled the Senate and a seat opened up at the end of 2023, McConnell said: “Well, we’d have to wait and see what happens.”
The comments from the top Senate Republican are likely to trigger the ire of Democrats who have been intensely critical of McConnell’s handling of the Supreme Court confirmation process in the past and have accused Republicans of obstruction and hypocrisy over the issue.
It also comes as pressure as progressives and some Democrats increasingly signal they hope to see Justice Stephen Breyer retire in order to pave the way for Biden to make a nomination to the high court. Democratic Rep. Alexandria Ocasio-Cortez told CNN’s Dana Bash on “State of the Union” Sunday “it’s something I think about, but I would probably lean towards yes,” when asked if Breyer should retire at the end of this Supreme Court term.
McConnell and Senate Republicans famously refused to consider the Supreme Court nomination of Merrick Garland by then-President Barack Obama in 2016, a presidential election year, after the death of Justice Antonin Scalia.
After former President Donald Trump won the White House and was sworn into office, he nominated Neil Gorsuch to the Supreme Court and the GOP-controlled Senate confirmed the nomination.
But in 2020, another presidential election year, McConnell and Senate Republicans took up and confirmed the nomination of Amy Coney Barrett to the Supreme Court, Trump’s pick to fill the vacancy created by the death of Justice Ruth Bader Ginsburg.
McConnell claims that 2020 was different than 2016 because Republicans had control of the Senate and there was a Republican in the White House, whereas when a vacancy arose in 2016, Obama was president while Republicans held the Senate.
But Senate Republicans rarely made that argument in 2016, instead focusing on making a broader argument that voters should get to decide the direction of the Supreme Court with the country on the verge of electing a new president.
Reflecting on his moves to usher in the confirmation of high court justices while Trump was in office, McConnell told Hewitt on Monday, “I do think the issue that you raised is the single most consequential thing I’ve done in my time as majority leader of the Senate. I preserved the Scalia vacancy, the Gorsuch appointment … and of course we had very little time left when Justice Ginsburg passed away. That took a good deal of priority and skill to get Amy Coney Barrett through. I think we’ll find out what a difference it makes to the American people.”