McConnell Already Planning to Block Hypothetical Biden Supreme Court Nomination

Richard Shugrue
Richard Shugrue
The Daily Record

You can say this for Sen. Mitch McConnell: He’s consistent.

He promised to torpedo the nomination of Merrick Garland to the Supreme Court following the death of Antonin Scalia, and he did. That stunt left the nation’s highest court with only eight members for more than a year and deprived President Barack Obama of the opportunity to replace a conservative Republican with a more liberal Democrat.

As of this writing, Stephen Breyer has remained silent about any plan for his retirement, but McConnell has vowed to throw a monkey wrench into any Supreme Court nomination after the 2022 elections. He told broadcast commentator Hugh Hewitt earlier this month that, if the GOP retakes the Senate, he would stop President Joe Biden from getting a new justice.

McConnell is counting on his party recapturing one if not two seats up for grabs in 2022, those of Mark Kelly of Arizona and Ralph Warnock of Georgia. Kelly beat appointed incumbent Martha McSally in a special election by nearly 80,000 votes. The victory put him in the late John McCain’s spot, whose term ends in 2022.

Warnock won a run-off in the Peach State against another appointed incumbent. His brief term ends next year.  The margin of Warnock’s victory was just over 51%.

Of course, McConnell’s plan to recapture the Senate involves other races as well, and depends on Republican victories in North Carolina, where Sen. Richard Burr is retiring, and Florida, where Sen. Marco Rubio faces a rough race against probable Democratic nominee Representative Val Deming, the former police chief of Orlando and a manager of the first Trump impeachment in the House.

Another possibility to foil the McConnell plan is a break in Republican loyalty to his leadership. Just this past week, Biden’s nomination of Kamija Brown Jackson to the D.C. Court of Appeals was supported by three Republicans, Susan Collins of Maine. Lisa Murkowski of Alaska and Lindsay Graham of South Carolina.

Biden strategists hope that, on a Supreme Court nomination, others, such as Mitt Romney and even Nebraska’s own Ben Sasse, could be convinced to “do the right thing” and vote for a Democratic nominee.

One can never predict with certainty what a justice will do once vested with life tenure. 

Just last week, Trump justices Brett Kavanagh and Amy Barrett (along with Clarence Thomas) joined Breyer’s majority ruling giving CPR — once again — to Obamacare!

For that matter, a unanimous court voted against the City of Philadelphia in a First Amendment suit, ruling the city could not cancel a contract with an agency that refused to serve gay couples seeking foster care placement.

For those on the Democratic side, the harm to balance on the high court was done long ago.  So even if Biden gets to name a replacement for Breyer, he’d still have to get a lot more appointments before the court gets back to where he’d like it to be.  And that’s assuming any plan to expand the number of justices is simply dead in the water.


Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.


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