by Matt Ellison
An icy chill crept down the proverbial spine of the Biden administration, on Monday last when Senate Minority Leader Mitch McConnell (R-KY) intimated that should his party regain control of the Senate after next year’s midterm elections, he will refuse to hold a vote to confirm any picks for the Supreme Court Biden might make ahead of the 2024 presidential election.
Speaking on a right-wing talk show, the veteran Kentucky Senator and Republican power broker admitted that it was “highly unlikely” that he would vote to confirm a Biden appointee to the Supreme Court, were he in a position to block such a vote as Senate Majority Leader.
This is a tack McConnell has taken once before, eight months before the 2016 presidential election when President Barack Obama nominated Merrick Garland to take the place of the late Justice Antonin Scalia. McConnell cited an obscure rule – CNN calls it “self-coined” – that prohibited the Senate from voting on a Supreme Court nomination during a Presidential election year. With no basis in US Constitutional law, commentators were quick to point out that this had no basis in precedent, either. In fact, throughout US history the Senate has hosted votes on no less than 14 Supreme Court nominations during an election year, with the first such vote occurring in 1804 under President Thomas Jefferson. Of those 14, fully half of those votes resulted in the President’s pick being confirmed by the Senate (though only once out of those seven successful votes did the party in control of the White House and the Senate differ).
Nonetheless, under Senator McConnell’s colourful interpretation of the Senate Majority Leader’s powers and responsibilities, he has engineered a conservative majority on the Supreme Court that could endure for a decade to come or more. Three or more Presidential terms could now potentially operate under the aegis of the three Supreme Court Justices selected by President Donald Trump and shepherded through the nominations process by McConnell. What this means is that voters could consistently vote for liberal Democrats in every election for the next 10 years, only to find progressive legislation on every issue from voting access to LGBT+ rights to policing cut down by the conservative Supreme Court. By capturing the justice system, Mitch McConnell has captured American democracy.
The Supreme Court’s nine Justices currently skew 6 – 3 in favour of conservative judges. This follows a swing to the right achieved entirely under Trump, but since Supreme Court Justices sit for life, there is no real way to predict when a new vacancy will open up, or who it will be that steps down to open it. When a vacancy does open up, either through retirement or the death of a judge, the President of the day nominates a sitting judge to take the position, and the Senate holds hearings to affirm the competency and suitability of the President’s nominee before finally holding a vote to confirm them to the position. In modern American politics, defined as they are by levels of partisan division not seen in the country since the Civil War, Presidents tend to nominate justices of an ideological bent with their own. In today’s American punditry, Supreme Court judges are effectively considered Republican or Democrat depending on the party whose President nominated them, politicising what most countries would otherwise consider sacrosanct from the ravages of politics; the judicial system itself.
With McConnell’s admission on Monday, this judicial trench warfare is entering a new and treacherous phase. The oldest sitting Justice on the Supreme Court today is 82 year old Stephen Breyer, a liberal appointed by President Bill Clinton in 1994. Alarm among Washington Democrats at McConnell tipping his hand as to his intentions to rig the Senate confirmation process against the Democrats should he be in a position to do so after next year’s elections have raised the question of Breyer’s future, with a suggestion from progressive House Representative Alexandria Ocasio-Cortez (D-NY) that Breyer should retire. During the Obama years, Democrats likewise attempted to convince late Justice Ruth Bader Ginsburg to step down to open up a pick for the Democrats while they still held the White House. Her refusal to do so meant that when she died in office just last year, the President entrusted with selecting her successor was Donald Trump.
This is now the same roll of the dice hanging over Justice Breyer, whose very mortality suddenly plays a defining role in the future of American democracy. The new Senate, voted into office in November next year, does not get sworn in until January 2023. At any time between now and then, Democrats will hold all the cards should a vacant spot open up on the Supreme Court, allowing them to flip the partisan divide in the court to a much more balanced 5 – 4. There is no guarantee, either, that the Republicans will win the Senate in next year’s elections. Confidence in his own party’s chances may inspire Breyer to stay the course, comfortable in a Democratic Senate in 2023-24 that could stand to replace him if necessary.
But his colleague Ruth Bader Ginsburg made that same gamble, and lost. While Republican prospects for the 2024 Presidential election are shrouded in mystery, questions hang over the Democratic ticket, as well. Joe Biden will be 82 come 2024, the same age Justice Breyer is now. It is unclear if he will be willing to run for another four years in perhaps one of the most taxing jobs in the world. His Vice President, Kamala Harris, has also appeared to be a poor option for a successor, given her gaff prone relationship with the media. Exactly what happens to Breyer’s seat, therefore, is an unknown.
This question mark, however, goes some way to vindicating Rep. Ocasio-Cortez’s bluntness. The only thing the Democrats can be sure of in the murky waters of American politics is that they will hold on to the Senate for one and a half more years, come what may. They have a chance to act now to redress the balance in the Supreme Court and chip away at the conservative stranglehold on the American Republic.
Or, they could go the way of Liverpool in their shock upset loss to Aston Villa last summer, and sacrifice a 7 – 2 final score to an upstart that they should have already beaten.
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