McConnell Seems to Rule out Confirming Biden SCOTUS Pick after 2022

He's in the minority but promises to start obstructing again if that changes.

Photo Credit: NASA/Bill Ingalls

CNN’s Chris Cillizza (“Mitch McConnell plays his Supreme Court card“):

If President Joe Biden wants to fill a Supreme Court vacancy, he had better hope a seat opens up between now and the end of 2022.

That’s the unmistakeable message sent by Senate Minority Leader Mitch McConnell (R) in an interview Monday with conservative talk radio host Hugh Hewitt.

“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,” McConnell told Hewitt. “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.”

Asked about whether he would allow the confirmation of a justice in 2023, McConnell was, um, circumspect. “Well, we’d have to wait and see what happens,” he said.

Which, in McConnell-speak, is a “no.”

That’s certainly my reading.

While I once believed that Presidents are entitled to have qualified Supreme Court nominees confirmed, I’ve long since come around to the view that, if the opposite party controls the Senate, it’s perfectly reasonable for them to demand one that’s relatively moderate. Barack Obama upheld his end of that implicit bargain with his choice of the relatively senior, relatively moderate Merrick Garland to replace the late Antonin Scalia in early 2016 and McConnell simply refused to have hearings.

I’m amenable to the notion that, very late in a Presidential election cycle, it’s reasonable for an opposite-party Senate to refuse to have hearings until after the election. If the President is re-elected or his party’s nominee wins, the confirmation process goes forward. If not, tough luck. But February—with almost a year left in a four-year term—is obviously unreasonable. The two-year mark of a four-year term? It’s effectively a partial coup.

McConnell has demonstrated time and again, though, that it’s simply about having the votes. If his caucus goes along with him, he can in fact refuse to hold hearings if he holds the majority in 2023. But that would be true through the duration of a presidential term. Indeed, it’s likely that, were he the Majority Leader right now, he’d already find a nominal excuse for blocking a vote.

FILED UNDER: Congress, Law and the Courts, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Teve says:

    I’m begging you, please, come up with some stock image when you’re talking about McConnell that is not a close-up of his hideous visage. The worst thing about following political news is that every day my eyeballs get battered with a dozen images like that.

    free Creative Commons images of sea turtles

    5
  2. Kylopod says:

    Mitch’s slogan should be “Because We Can.”

    2
  3. Kylopod says:

    @Teve: I came up with this graphic a while back as my personal guide to the Trump team. The Trump/orangutan image was lifted from Bill Maher, but the rest of the matches were collected by yours truly using Google Images.

    3
  4. Mikey says:

    As I said yesterday, enough of this shit. Expand SCOTUS to 13 now and nominate four of the youngest and most liberal judges qualified for the position. Ram them through in eight days like the GOP did with Barrett. It’s time for Democrats to understand the power they have and fucking use it. It is not hyperbole to say the future of America as a democratic nation depends on it.

    33
  5. KM says:

    I’m amenable to the notion that, very late in a Presidential election cycle, it’s reasonable for an opposite-party Senate to refuse to have hearings until after the election.

    Why? Seriously, under what logic does that make sense?

    It denies POTUS their Constitutional right of power and duty to the nation due to some extremely flexible, arbitrary and partisan reasoning same as it did before. There’s no objective way to support this concept other than admitting it’s being done as Might Makes Right. What defines “very late”? WHO defines it? After all, if you accept the notion the opposite party can and should prevent something that’s detrimental to their power because a President *might* lose, who’s to say halfway through a term isn’t “late”, especially when now they’ve regained power?

    You already agreed to the Faustian deal but now want to quibble about the delivery fees. You cannot say it’s reasonable to straight up tell POTUS they can’t do their job for no reason other than “we think it’s too far into their term” and then get angry someone’s abusing the definition of “far”. That was the whole point of this – to move up the Constitutional deadline to a time of their choosing and convenience. If you accept they can do that, that nebulous “when” gets a whole lot sooner than later……

    15
  6. Barry says:

    JAmes: “I’m amenable to the notion that, very late in a Presidential election cycle, it’s reasonable for an opposite-party Senate to refuse to have hearings until after the election. ”

    A position which was sh*t out of McConnell’s arse for Garland, and pulled back up for Barrett.

    There wasn’t even the thinnest coat of paint on that turd, James.

    20
  7. Jen says:

    I sincerely, deeply, and fervently hate Sen. McConnell. I think he is one of, if not THE, biggest threats to our Republic and I will not shed a single tear when he shuffles off this mortal coil.

    14
  8. drj says:

    The two-year mark of a four-year term? It’s effectively a partial coup.

    That’s why McConnell c.s. will be very happy if we flog that CRT horse some more.

    Speaking of coups, it’s also a nice distraction from the GOP’s involvement in 1/6.

    2
  9. Michael Cain says:

    @Mikey:

    Expand SCOTUS to 13 now and nominate four of the youngest and most liberal judges qualified for the position.

    So easy to say. So hard to actually accomplish. Manchin is opposed. Sinema is opposed. I believe Angus King has said he’s opposed. Some of the rest of the (D) Senators seem at least squishy on the topic. I don’t see any leverage that can be imposed on Manchin in particular.

    8
  10. James Joyner says:

    @KM: @Barry: Even absent the Garland gambit, a Democratic Senate would have almost surely refused to allow Trump to replace RBG two months before an election. I’d have been okay with that. But, yes, drawing a line is always tough. And, as I acknowledge in the OP and numerous previous postings on the matter, McConnell is simply doing what he has the votes to do and “principle” is only a pretext.

    3
  11. MarkedMan says:

    This is just more evidence that the old era is passed. We have entered a new era, where a President cannot get a Supreme Court Justice appointed unless their party controls the Senate. Dems need to understand this and act accordingly.

    The next logical step is to pack the court.

    11
  12. gVOR08 says:

    We have a gopher turtle with a den in our back yard. We of course call him* Mitch, although he* seems likable enough.

    *Apparently actual gender determination requires close examination, inverted.

  13. KM says:

    @James Joyner:

    McConnell is simply doing what he has the votes to do and “principle” is only a pretext.

    And so deciding that deciding a SCOTUS pick two-year mark of a four-year term being effectively a partial coup makes no damn sense. The pretext is crap and if he has the votes, he’ll do it no matter when so drawing the line between “partial coup” and “meh, what are you gonna do?” becomes navel-gazing. Soon enough it will be “no appointments from a Dem before midterms” since that could sway the election, reducing it to a liberal POTUS’s first year. It will be the new norm.

    As loathe as I am to say it, it was Trump’s right to appoint Barrett, even if it was the last day of his term. Using “it’s too close to the election” was a slippery slope because the underlying logic was “the deadline is flexible to what’s politically convenient” and sure enough, it was altered to hurt Dems and benefit Repubs and now is swinging back to hurting Dems. The underlying premise is that Dems are not allowed to get someone appointed but Repubs are. The pretext of elections is going to get dropped if this is allowed to happen again as it will establish the precedent that the GOP in Congress control appointments, not POTUS. Again, if you’re alright with a POTUS’s pick being rejected ahead of time due to “timing”, objecting to someone moving the timing up misses the point.

    6
  14. Daryl and his brother Darryl says:

    It took amazing men, like Washington and Franklin and Adams (a couple of them) and Jefferson and so on, to create this Democratic Republic.
    It only took a few mediocre men, like McConnell and Trump, to bring about it’s end.

    6
  15. Kingdaddy says:

    I’ve read coverage of McConnell’s statement twice. Both times, my eyes have slid off the page in the middle of a sentence. That’s because it doesn’t really matter what McConnell says. There is no principle in play. He is simply hacking up the latest hairball of excuses for obstruction of a Democratic president’s authority, with the Senate’s approval, to appoint a Supreme Court justice.

    “We can’t possibly fill a vacancy in the Supreme Court in a year divisible by a prime number, when the phase four of the Marvel Cinematic Universe is just getting underway, and the cherry blossoms aren’t in bloom that month…”

    His words don’t matter.

    25
  16. gVOR08 says:

    @Kingdaddy: True. Norms? We don’t need no steenking norms. Or governance.

    Last night I finally heard a talking head say out loud what we all know. Moscow Mitch does whatever his big buck donors want. And GOPs call themselves populists.

    3
  17. Chip Daniels says:

    This is another data point supporting the contention that the Republican Party has become an insurrectionist force, and by that, I mean a party which refuses to consider their fellow citizens as co-equals and legitimate holders of power. This is why they now consider democracy itself to be an obstacle to be overcome.

    Their strategy now is “Rule or Ruin”.

    9
  18. Just nutha ignint cracker says:

    This isn’t even news anymore. The sad part is that probably 40% (maybe more) of the population is responding either “Damn straight! He shouldn’t” or “Good move” and nodding approvingly.

    1
  19. Just nutha ignint cracker says:

    @gVOR08: Hey now! Money is VERY POPULAR. EVERYONE wants it.

  20. HarvardLaw92 says:

    I’ve never wished death on anyone, including this festering wound on society, but I’m not saying that I won’t celebrate his passing either …

    6
  21. Gustopher says:

    I’m hoping Justice Breyer is reading reports of this and recognizes that waiting to retire would be even more political than retiring now.

    But, I’m still shocked that the Democrats’ response to McConnell filibustering the organizing resolution to get a promise of no filibuster reform didn’t result in the filibuster being tossed out. Are some people not motivated by spite?

    4
  22. SC_Birdflyte says:

    Where, oh where is the enterprising reporter who can dig up the truth about McConnell? For starters, look into his wife’s family connection with individuals reputed to be close to the Chinese government. And we should start a petition campaign to Jeff Bezos and Tom Steyer to fund this investigation.

    2
  23. @Mikey: Indeed. McConnell’s position is a version of the same power that would allow Court expansion.

    The Dems aren’t going to do it, but they should for reasons I have written about before and likely will soon write about again.

    7
  24. @drj: Because FNC will stop talking about whatever they want to talk about if only all the people everywhere mind their Ps and Qs?

    3
  25. Raoul says:

    Let’s call it what it is- the McConnell constitution. I generally agree with JJ on this. There is nothing unreasonable in not holding a vote near an election, kind like DOJ not announcing the investigation of politicians three months out of an election. These are reasonable standards, both which Comey and McConnell have broken. It tells you all you need to know about the modern GOP.

    3
  26. @Chip Daniels: On one level, I don’t fault him. You have the votes or you don’t. That’s actually fair.

    The problem isn’t that behavior, per se. The problem is first, pretending like it is principle guiding his behavior and, worse, even when. He has the votes he represents a distinct minority of the country.

    The problem is made worse by the fact that the Dems don’t see that they have the votes now and should use them instead of hoping things area going back to some “normal” that probably never existed in the first place.

    6
  27. Daryl and his brother Darryl says:

    @HarvardLaw92:
    Exactly how I felt about Scalia, as well.

    1
  28. gVOR08 says:

    @HarvardLaw92:

    I’ve never wished death on anyone, including this festering wound on society, but I’m not saying that I won’t celebrate his passing either …

    There are days I think liberals should start talking about Second Amendment solutions. How can anyone, even Doug, not look at McConnell and see why we need to control money in politics.

    And just because it’s supposed to piss him off – Moscow Mitch, Moscow Mitch, Moscow Mitch, Moscow Mitch, Moscow Mitch, Moscow Mitch, Moscow Mitch…

    1
  29. de stijl says:

    @Teve:

    I get you.

    I try hard to be not lookist. And succeed 99.99% of the time.

    But McConnell offends my eye and aesthetic sense. He is turtle boy. Always.

    He, and Ken Paxton, the AG of Texas who looks as if he were made of Play-Doh, his face got smushed one day, and then someone tried to recreate the look of a human face, but botched the job.

    Seriously, take a look at a photo of Paxton. Man, or embiggened and refashioned Play-Doh homunculus? I suspect he might be a golem.

    Speaking of Texas, I had no idea Gov. Abbot was a wheelchair dude until about two months ago. Literally, I had no clue.

  30. de stijl says:

    @Kingdaddy:

    You do have to kind of give it up for McConnell’s moxie and ballsiness.

    That lack of any guiding ethical principle is remarkable. He’s just “Yep. I said it.”

    At this point he is blatantly stating what has been obvious since Garland. I am Lucy, and you are not ever going to get a chance to kick the football, Charlie Brown.

    2
  31. MarkedMan says:

    @Steven L. Taylor:

    On one level, I don’t fault him. You have the votes or you don’t. That’s actually fair.

    I disagree strongly on this. The country (and many other things for that matter) run on norms as much as they run on laws. Republicans tossing out the norms may be legal, but it is also destructive.

    It’s this way in business too. The amount of business that can get done when the people across from the table know they are all good for their word is far, far more than when they know that what they agreed to isn’t worth a damn and as soon as they walk away from the table will be checking with their lawyers about the clauses that will allow them to screw everyone else.

    This idea that just because something is legal means that it is okay is dangerous.

    6
  32. Mu Yixiao says:

    @MarkedMan:

    It’s this way in business too. The amount of business that can get done when the people across from the table know they are all good for their word is far, far more than when they know that what they agreed to isn’t worth a damn and as soon as they walk away from the table will be checking with their lawyers about the clauses that will allow them to screw everyone else.

    You just described doing business in China.

    In the US, business is poker (we even use all the idioms). We’re playing a game. We want to win that game, but we also want you to come back and play again.

    In China, the metaphor is “a battle of the thieves”. And if you’re sitting there playing poker, they’re going to laugh at you and steal all your money (and your cards, and your hat if you’re not paying attention).

    Right now, the Dems are playing poker. And the Reps are playing dodge ball.

    2
  33. Just nutha ignint cracker says:

    @gVOR08:

    How can anyone, even Doug, not look at McConnell and see why we need to control money in politics.

    Because, like brave Sir Mittens was about FG, they’re fine with the agenda and the outcomes. They may find that FG/the way money controls the process is a little off putting, but not enough to toss out the results that they want to see.

    It appears that you can either be the guy who cheats to win or the guy who hates all the cheating that goes on–but still cheats to win.

    ETA: @Mu Yixiao: My favorite line from my time in Korea: “A contract is a rough approximation of the conditions under which business will be conducted.”

  34. de stijl says:

    @MarkedMan:

    I cannot fault him for the act. The means were always there. He chose to break the guardrails. I can fault him for the obvious misdeed.

    It is us in naked aggression now. He has been implicitly obstructionist since, well, forever, but explicitly so since Obama’s Inauguration Day.

    Now we know fully. And, hopefully, can cope with that.

    It is well outside of norms and that is exploitable. The messaging folks need to hammer that.

    On this, I would welcome @Jen’s input.

  35. Gustopher says:

    @gVOR08:

    There are days I think liberals should start talking about Second Amendment solutions.

    Careful, someone might realize the judges have lifetime appointments.

    (And then the Democrats, in the spirit of bipartisanship, comity and fairness, would nominate and/or confirm a new set of younger right wing wackjobs to replace the dearly departed right wing wackjob justices…. Younger, most likely, making things worse)

    1
  36. Gustopher says:

    @de stijl: If someone sets up a football for you, it would be rude not to kick it though.

    2
  37. de stijl says:

    @Gustopher:

    Apparently, the football will be coming in a week or so. If Collins and her cohort can cajole her colleagues into making available such football.

    It is very frustrating, this wait. Feels like it’s been going on since February 2008, or so.

  38. Jay L Gischer says:

    Has anyone bothered to fact-check Sen. McConnell? When was the last time a SCOTUS justice was confirmed during the second half of a presidential term – when the Senate was held by the opposition. In fact, how many times has that situation even come up?

    Inquiring minds want to know, but don’t really know what the right source material is to comb for such research.

    I think the thing that bothered me most about Merrick Garland is less that there was no confirmation, but that there were no hearings and no vote. Just an absolute refusal to engage with their constitutional duty. I feel that in this circumstance a “recess appointment” should be fair game. What’s to prevent them for carrying this forward for 6 years, or 8 or 10, as long as it keeps the Court swung to their advantage? There has to be some down side to their refusal to engage.

    3
  39. @MarkedMan:

    I disagree strongly on this. The country (and many other things for that matter) run on norms as much as they run on laws. Republicans tossing out the norms may be legal, but it is also destructive.

    I have a lot to say about this, but let me ask: do you support Joe Manchin’s arguments for not getting rid of the filibuster?

    (And there is a real question about what norm we are talking about here, as I expect McC is correct when he says ” 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”–recognizing there is some weaseling going on here, especially as it pertains to 2016. It is hard to have a norm when the actual number of cases is limited).

    2
  40. @MarkedMan:

    This idea that just because something is legal means that it is okay is dangerous.

    I am not even sure “legal” is the right frame.

    A legislative caucus either has the votes to do something or it doesn’t. That isn’t about “being legal.” (Now, recognize I have plenty of problems with the design of the Senate).

    1
  41. @Jay L Gischer:

    Has anyone bothered to fact-check Sen. McConnell? When was the last time a SCOTUS justice was confirmed during the second half of a presidential term – when the Senate was held by the opposition. In fact, how many times has that situation even come up?

    I feel like I did look this up at one point, but can’t recall.

    But keep in mind that the number of SCOTUS nominations is limited and the number of two-year periods of the Senate and President being held by the same party is also limited (although not as limited as the number of nominees). As such, the number of times a confluence of all conditions existing at the same time is limited (which is part of what I meant about weaseling–plus he controlled 2016).

    2
  42. My ultimate point is that the Senate (as are all legislative bodies) is governed by the number of votes that can be compiled.

    That is why it is important, for example, for legislative bodies to be adequately representative of the population (and for the bodies to be the right size).

    This is why I write so much about the electoral system and the problems with our system.

    4
  43. Just Another Ex-Republican says:

    McConnell is actually evil. The best thing he will ever do for this country is die.

    4
  44. de stijl says:

    Why would Lucy deprive Charlie Brown from kicking the football?

    It is not that CB was an alpha goon jock who needed to be knocked down a peg or two to get his head on straight.

    CB is a nebbish. Affably trying to figure out the world. Wishing to kick a football.

    Lucy’s actions are cruel and malicious.

    She feigns her promises and inevitably snatches away closure at the very last second for her amusement and glee.

    Lucy exhibits sure signs of psychopathy.

    If Charlie Brown needed to learn any one lesson, it would be never, ever, trust anything Lucy says.

  45. HarvardLaw92 says:

    @Daryl and his brother Darryl:

    Exactly how I felt about Scalia, as well.

    You’d have to have known him / worked with him to really understand him, but I understand why someone who didn’t would feel that way. I pretty vehemently disagreed with his viewpoint of the law, but he was easily one of the most brilliant people I’ve ever met and I respected him for that. Spontaneous arguments with him about points of law (which he loved) were brutal, but they sharpened and solidified for me why I believe what I believe. He didn’t fault you for believing something, but woe to you if you weren’t prepared to cogently defend it.

    One of my bigger sadnesses was watching him basically get cranky and give up towards the end. I’m not sure if he stopped caring or he just got tired, but it wasn’t the justice I knew.

    2
  46. Jay L Gischer says:

    @HarvardLaw92: Well, it’s good to hear from someone else who knew Scalia. I knew a guy on Google+ who went to the same church, and of course RBG was really good friends with him, too. That’s enough for me on the personal level. But, of course, I despise most of his jurisprudence.

    He signed on to some of the worst, most partisan decisions of my lifetime, including Bush v. Gore, NFIB v. Sibelius (“Eat your broccoli”? That was rank BS.), and Shelby v. Holder. All highly partisan decisions, and made by a courts where, as Steven keeps saying, the majority was made by presidents that didn’t win the popular vote and confirmed by a Senate whose “majority” did not represent anything close to a majority of voters.

    As to McConnell, I actually believe that when he gives his word, he sticks to it. But there’s lots of wiggle room and weaseling in most of his public statements. That doesn’t bother me all that much, that’s just politics.

    No, it’s the “Oh, we don’t have to even hold a vote” crap that bothers me. Aren’t Republicans supposed to be the party of personal responsibility? Stand up and be counted, then.

    2
  47. Michael Cain says:

    @Steven L. Taylor:

    This is why I write so much about the electoral system and the problems with our system.

    And I, for one, appreciate it. Granted, I think you underestimate just how badly things can go if a minority of the population, highly segregated regionally, can exploit the rules — or lack thereof — to impose national policy unpopular in other regions. To pick a simple example, by the end of this month my wife and I will be breathing smoke from the fires in the national forests again. I’ll be wearing my N95 mask when I go bicycling, not for Covid but for smoke particulates. The Republican minority, even in the western states where those fires will be burning, seems to be unable or unwilling to deal with the problem. I admit that I’m in the lunatic fringe on this, but at some point those state capitals west of 105° W are going to quit playing along.

  48. Moosebreath says:

    @Jay L Gischer:

    “Has anyone bothered to fact-check Sen. McConnell? When was the last time a SCOTUS justice was confirmed during the second half of a presidential term – when the Senate was held by the opposition.”

    Off the top of my head, it’s probably Clarence Thomas.

  49. MarkedMan says:

    @Steven L. Taylor: No. I do not support Manchin’s arguments on the filibuster. More importantly, I don’t support the filibuster as it stands now and has it has stood for decades. For virtually all my i
    adult life it has been an extraconstutional rule that all significant legislation requires a 60-40 vote. This is not the way the country was set up and it’s not good.

    It is like the designated hitter rule. It’s an abomination, but it makes no sense for one side to give it up while the other retains it.

    1
  50. SC_Birdflyte says:

    @Moosebreath: Yes. And prior to him, Anthony Kennedy. In 1971, Nixon was able to win confirmation for both Lewis Powell and William Rehnquist a year before the ’72 election.

  51. HelloWorld! says:

    I guess presidential terms are only 2 years now?

    1
  52. al Ameda says:

    @HarvardLaw92:

    I’ve never wished death on anyone, including this festering wound on society, but I’m not saying that I won’t celebrate his passing either …</blockquote
    Or as Bette Davis is alleged to have said concerning the passing of Joan Crawford:
    “You should never say bad things about the dead, only good… Joan Crawford is dead. Good.”

    1
  53. Mike Schilling says:

    Was this ever in doubt?