U.S. Senate Minority Leader Mitch McConnell said on Monday that President Joe Biden would not get a Supreme Court nominee confirmed in 2024 if Republicans regain control of the chamber and a vacancy arises during that presidential election year.
"It's highly unlikely. In fact, no, I don't think either party, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election," McConnell told syndicated conservative radio host Hugh Hewitt.
McConnell could return as majority leader if Republicans regain control of the Senate in the 2022 midterm elections. While serving as majority leader, McConnell blocked Democratic former President Barack Obama from filling a vacancy left by the death of conservative Justice Antonin Scalia in February 2016, saying it would be improper to confirm a Supreme Court nominee during a presidential election year.
McConnell and his fellow Senate Republicans refused to consider Obama's nominee — Merrick Garland, who now serves as Biden's attorney general — in a move with little precedent in U.S. history. That enabled Donald Trump, the winner of the November 2016 election, to appoint conservative Justice Neil Gorsuch in 2017.
Democrats accused McConnell of hypocrisy last year when he allowed the Senate to confirm Trump's conservative Supreme Court nominee Amy Coney Barrett to replace liberal Justice Ruth Bader Ginsburg, who died in September about six weeks before the 2020 presidential election. Trump, a Republican, was defeated by Biden, a Democrat, in the election, and Democrats also took control of the Senate.
McConnell signaled that a Biden nominee could have problems even outside an election year. When Hewitt asked if a Republican-controlled Senate would give "a normal mainstream liberal" nominee a fair shot at a confirmation hearing if a vacancy opened in 2023, McConnell replied: "Well, we'd have to wait and see what happens."
He described his decision to keep Scalia's seat open until after Trump was elected as "the single most consequential thing I've done in my time as majority leader of the Senate." McConnell made confirmation of Trump's conservative judicial nominees a high priority. Trump appointed three justices, also including Brett Kavanaugh, to the Supreme Court, which now has a 6-3 conservative majority.
Criticism from Democrats
Democrats denounced McConnell's comments, with some even using them to solicit campaign donations.
"He would change the rules a third time if he could to make sure they (Republicans) would get the choice for the next Supreme Court justice. He's not much for precedent and tradition when it doesn't serve him politically," said Senate Judiciary Committee Chairman Dick Durbin, the chamber's No. 2 Democrat.
Democratic Senator Ed Markey wrote on Twitter: "Mitch McConnell is already foreshadowing that he'll steal a 3rd Supreme Court seat if he gets the chance. He's done it before, and he'll do it again. We need to expand the Supreme Court."
Some Democrats have proposed expanding the number of justices in order to end the Supreme Court's conservative majority.
Some liberal activists have urged liberal Justice Stephen Breyer, at 82 the court's oldest member, to retire now while the Senate remains in Democratic hands. Biden during the election campaign vowed to name a Black woman to the court, which would be a historic first.
The Senate was due later on Monday to vote on the confirmation of Washington-based U.S. District Judge Ketanji Brown Jackson to an influential federal appellate court. Jackson, among the most prominent Black women in the federal judiciary, is considered a potential Supreme Court pick for Biden.
The 100-seat Senate is currently split 50-50, with Democrats in control only because Vice President Kamala Harris wields a tie-breaking vote.