Byron York’s Daily Memo: Democratic SCOTUS anxiety sky-high
Many Democrats are hoping that 82-year-old Supreme Court Justice Stephen Breyer will retire soon in order to give President Biden a chance to replace him while the Senate is under effective Democratic control. (Democrats do not control a majority of Senate seats — it is tied, 50-50 — but Vice President Kamala Harris can break ties in the party’s favor.)
For those Democrats, the sooner the better. Yes, the party will keep effective control of the Senate at least until next year’s midterms. But what if Democratic Senator Joe Manchin switched parties, putting Republicans in charge? Confirming a Biden nominee would become much, much harder. So even if Breyer can wait a year to retire with a Senate under effective Democratic control, why risk it? Retire now and get a relatively young Democrat safely on the Court.
That is why some are freaking out over what Minority Leader Mitch McConnell said Monday in an interview with radio host Hugh Hewitt. In a question about the Court, Hewitt referred back to 2016, when Justice Antonin Scalia died and Barack Obama was president. Back then, McConnell, then-Senate Majority Leader, blocked Obama’s nominee to replace Scalia, Merrick Garland, on the grounds that the Senate — when it is under control of the opposition party — has historically not confirmed election-year nominees. So Hewitt asked: If you regain the majority in 2022 for Republicans…would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?”
McConnell’s short answer: Yes. “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. 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.” McConnell then noted that in the election year of 2020, when the Republican Senate quickly President Trump’s nomination of Amy Coney Barrett, “We were of the same party as the president.”