So much for quaint notions of bipartisanship. Senate Minority Leader Mitch McConnell this week bluntly admitted what should long have been obvious: He views partisan politics as a zero-sum game in which the only goal is to seize power from the opposing party by any means necessary. In an interview, McConnell acknowledged that, should Republicans retake the Senate next year, he wouldn’t even consider a Supreme Court nominee from President Joe Biden in 2024 — maybe not even a year earlier.
This should be a bright red warning on two fronts. Liberal Supreme Court Justice Stephen Breyer, 82, must stop tempting fate and announce his retirement well in advance of next year’s midterms so Biden can appoint his replacement. And Sen. Joe Manchin and other centrist Democrats must decide whether extending doomed olive branches to a rogue Republican Party is more important than protecting democracy.
McConnell’s bottomless cynicism regarding the high court has been evident since 2016, when he refused for the final 11 months of President Barack Obama’s tenure to let him fill a court vacancy. McConnell, then Senate majority leader, swaddled his stunt in populist piffle, saying “the people” should fill the vacancy via their presidential vote. Not only is that not how the Constitution works, but it ignores the fact that “the people” had already hired Obama (twice).
As soon as President Donald Trump was inaugurated (after an election in which almost 3 million fewer of “the people” voted for him than his opponent), McConnell immediately killed the filibuster for Supreme Court appointees so he could approve Trump’s first nominee, Neil Gorsuch, to fill the seat. Trump was able to fill two more vacancies during his term — including the seat opened by the death of Justice Ruth Bader Ginsburg less than two months before the November 2020 election. So much for letting “the people” decide.
Since McConnell applies different rules to court vacancies depending upon partisan circumstances, it was important that he be asked the hypothetical: What if Republicans retake the Senate next year, and then a court seat opens in 2024 as the election is approaching? McConnell, asked that question by an interviewer Monday, called it “highly unlikely” he’d allow Biden to fill it.
And if the vacancy came in 2023, with two years left in Biden’s term? “Well, we’d have to wait and see what happens.”
Sen. Manchin isn’t naïve — and Justice Breyer isn’t immortal. Both of them are endangering the very principles they claim to cherish by providing openings for this deeply Machiavellian senator to continue empowering his party at the expense of democracy. Manchin could lead other moderate Democrats to finally kill the filibuster in its entirety so America can move on from McConnell’s obstructionism. And Breyer should heed the advice that Ginsburg ignored, and step down before it’s too late.