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Breyer's retirement preempts more Supreme Court hardball from McConnell

·Chief National Correspondent
·4 min read
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While many Democratic activists may regard Mitch McConnell as an all-powerful bogeyman, there is little that the Republican Senate minority leader from Kentucky can do to stop President Biden from nominating the next Supreme Court justice.

Justice Stephen Breyer’s impending retirement comes none too soon for Democrats. As soon as several months from now, it might have been impossible to replace Breyer with a justice chosen by Biden.

Supreme Court Associate Justice Stephen Breyer
Supreme Court Associate Justice Stephen Breyer. (Steven Senne, AP)

Republicans hope to take back the Senate majority in the midterm elections this fall, and McConnell had already signaled last summer that if that were to happen, he would likely block any attempt by Biden to nominate a justice to an open Supreme Court seat.

McConnell’s position does not have precedent, despite his claim to be an institutionalist. It is a rule he created for himself over the last few years, as he engaged in a series of power plays that ratcheted up partisan tensions in the Congress.

But as long as Democrats have the majority in the Senate, Biden can nominate justices to the Supreme Court. That’s because McConnell abolished the filibuster for Supreme Court nominees in 2017, in order to appoint Neil Gorsuch to the bench.

In other words, there is no 60-vote supermajority requirement to confirm a judge to the federal bench, as there is to pass legislation.

McConnell was quiet on Wednesday as news of Breyer’s retirement rippled out across the country. That was a clear contrast to the way McConnell reacted to the unexpected death of Justice Antonin Scalia in 2016.

Senate Minority Leader Mitch McConnell
Senate Minority Leader Mitch McConnell. (Tom Williams/CQ-Roll Call via Getty Images)

When Scalia, a conservative justice, died almost six years ago, McConnell — who controlled the Senate at that time as majority leader — moved with lightning speed. Within an hour, he issued a statement saying he would not even allow a hearing for any nominee put forward by then-President Barack Obama.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said on Feb. 13, 2016. The election was almost nine months away.

Obama nominated Merrick Garland to the Supreme Court, and McConnell was true to his word. Garland was never given a hearing before the Senate Judiciary Committee. The seat went unfilled for more than a year, until 2017, when President Donald Trump nominated Gorsuch and the Republican-controlled Senate confirmed him by abolishing the filibuster for such votes.

McConnell’s constitutional hardball kept Democrats from pushing the court further to the left than it already was at the time. It remained a 4-to-4 split with Justice Anthony Kennedy as the swing ninth vote in many decisions. When Kennedy retired in 2018, Trump replaced him with Justice Brett Kavanaugh, which pushed the court to the right.

And then, in September 2020, Justice Ruth Bader Ginsberg, a liberal, died at 87. Under McConnell’s rationale for blocking the Garland nomination in 2016, he would have left the seat open and allowed “the American people” to “have a voice in the selection.”

Justice Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg. (Sarah Silbiger/Getty Images)

Instead, McConnell reversed himself. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said. The confirmation of Justice Amy Coney Barrett moved the court solidly to the right, giving conservatives a 6-3 majority in some cases and a 5-4 majority even in cases in which Chief Justice John Roberts did not rule their way.

Breyer’s retirement comes a few months before the justice will celebrate his 84th birthday. His advanced age, combined with McConnell’s ruthless track record regarding the court, is why a liberal group paid for a billboard truck to drive around the Supreme Court building last year with a large sign saying, “Breyer, retire.”

His retirement now, rather than a year from now, will prevent conservatives from dominating the court even more than they already do. And it may end up being the only Supreme Court vacancy filled by Biden.

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