If Republicans hold the Senate in 2024, don't expect new Supreme Court justices

Democrats may never recover from the fact that, in 2016, when Obama still occupied the White House but Republicans controlled the Senate, Sen. Mitch McConnell (R-Ky.) prevented Obama from putting Merrick Garland (now a highly partisan U.S. attorney general) on the Supreme Court to fill Antonin Scalia's seat.  They're probably spitting nails now, for Mitch McConnell has warned them to expect a repeat in 2024 should Republicans control the Senate and a Supreme Court seat become vacant.  The one thing they have done, though, is to urge Justice Stephen Breyer, the oldest Democrat-appointed Supreme Court justice, to retire immediately.

There was nothing particularly novel about what McConnell did in 2016.  In 1992, when George Bush, Sr.'s first term was ending, Joe Biden stated what he thought should be the rule if one party controls the White House and the other party controls the Senate in an election year:

[I]t is my view that if a Supreme Court justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed.

In 2020, Democrats argued that this rule applied even if the White House and Senate were held by the same party.  Historical precedent, however, contradicted that line of thinking.  Except in 1987, Supreme Court justices were frequently confirmed in election years if the Senate and the White House were in the same hands:

  • In 1912, William Taft nominated Mahlon Pitney to the Supreme Court.  He was confirmed by the Senate five days later.
  • In 1916, Woodrow Wilson had two election-year nominations to the Supreme Court, both of whom were confirmed.
  • In 1932, Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.  He was unanimously confirmed just over a month later.
  • In 1940, Franklin Delano Roosevelt nominated Frank Murphy to the Supreme Court.  He was confirmed by a voice vote.
  • In 1987, Ronald Reagan nominated Anthony Kennedy to the Supreme Court.  He was confirmed in February 1988.
  • In 2020, Donald Trump nominated Amy Coney Barrett to the Supreme Court.  She was confirmed a month later.

Either way one looks at these rules, they make sense.  If voters in a midterm election place the Senate in the hands of the same party as the White House, they are signaling that they want unanimity between the Executive and the Senate for judicial nominations.  This unanimity is assumed to run at least through the presidential election.  However, if midterm elections result in a split, the voters are clearly saying they want the president's hands tied.

On Monday, Mitch McConnell made explicit what would in any event have been implicit if voters, in 2022, put the Senate in Republican hands:

Senate Minority Leader Mitch McConnell on Monday confirmed that if he becomes majority leader again, he would block President Joe Biden from filling a Supreme Court seat if one becomes vacant in 2024, and possibly in 2023 as well.

McConnell told the conservative radio host Hugh Hewitt that if he were leading the Senate, it would be "highly unlikely" that he'd allow Biden to fill a seat if one came up in the last year of his presidency.

"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," McConnell told Hewitt when asked if he would fill a hypothetical vacancy.

Instantly, Democrats began demanding that Justice Stephen Breyer retire from the Court:

McConnell's comments led to outrage on social media, with Rep. Mondaire Jones (D-NY), tweeting: "When I became the first person in Congress to call for Justice Breyer to retire now, while President Biden can still appoint a successor, some people asked whether it was necessary. Yes. Yes, it is."

"Certainly feels good to yell online about this, but the only audience that really matters is Stephen Breyer, [Sen. Joe Manchin], [Sen. Kyrsten Sinema], and a handful of other Senate Dems who are hiding behind them," added former Obama speechwriter Jon Favreau, referring to two Democratic senators who have spoken out against eliminating the filibuster. "Anyone got a plan to persuade that crew?"

It'll be interesting whether Breyer is moved by these partisan calculations or if, like Justice Ginsburg, he enjoys his work sufficiently to ignore these calls.  And there's no saying that Republicans will have been able to enact sufficient legislation across America to allow for the fair vote that would optimally bring a Republican majority to both houses of Congress.

Image: United States Supreme Court (edited).  Public Domain.

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