McConnell haunts Democrats with new threat to block Biden court nominee

Analysis by Stephen Collinson, CNN

Mitch McConnell just did it again.

The Senate minority leader, whose dubious maneuvering to turn the Supreme Court to the far right still haunts liberals, just previewed a fresh scheme to bolster conservative judicial supremacy on the nation’s top bench for years to come, with widespread consequences for all three branches of government.

The Republican veteran indicated Monday he would implement his self-declared rule and refuse to confirm a Supreme Court nominee picked by President Joe Biden in election year 2024 if the GOP wins the Senate next year.

“I think it’s highly unlikely,” McConnell said when asked on Hugh Hewitt’s conservative radio show if Biden would get a pick. In fact, the Kentucky power player didn’t even guarantee he would allow the confirmation of a Biden nominee in 2023 either.

McConnell’s foreshadowing will undoubtedly set off sirens for Democrats across Washington who hear the remarks as a reminder that the clock has already started both on moving their ambitious agenda through a narrowly divided Congress and keeping what few seats they have left on the high court.

McConnell is returning to his self-coined principle — that is mentioned nowhere in the Constitution — that at a certain point of their term a President no longer has the right to seat a Supreme Court nominee. The then-Senate majority leader used this ruse to thwart President Barack Obama’s pick Merrick Garland for eight months before the election in 2016. But with a Republican, Donald Trump, in the White House in 2020, he muscled Amy Coney Barrett onto the high court eight days before the election — after hypocritically discovering an exception to his own rule that came into operation if the Senate and the White House were in hands of the same party.

A warning sign to Democrats

As his comments on Monday built on that history, McConnell sent a warning to Democrats already struggling to coalesce over passing Biden’s first-year agenda that has foundered on tough Senate math.

In effect, he set a timer on the moment when Democrats could lose their short window on congressional power at the 2024 election. And with the kind of cynical clarity that only an expert and ruthless political operator can muster, he underscored just how high the stakes are next year.

Democratic Sen. Jeff Merkley from Oregon warned that McConnell’s warning raised the specter of another theft of a Supreme Court seat.

“The damage to the Court is enormous, it turns into … a partisan warfare. He has put this on steroids that is an order of magnitude that is more intense now,” Merkley said on “Cuomo Prime Time.”

“What can we do? Well, we can make sure that McConnell is not in the majority in ’23 and ’24 because … when he was in the majority he’s played this game before and his party rewarded him for it.”

In retrospect, McConnell’s blockade of Garland in 2016 was one of the earliest gambits in what has become a consistent pattern of Republican attacks on Washington norms by the GOP.

While no fan of Trump, McConnell’s goal is always the capturing or the preservation of power. His recent refusal to allow the Senate to establish an independent, bipartisan commission to investigate the insurrection on January 6, shows how he is willing to appease Trump’s base to that end. But it is also the kind of behavior that has America’s allies abroad fretting at the constant erosion of US constitutional guardrails, even as Biden tours Europe warning that democracy is under siege abroad.

McConnell’s invoking of his spoiler move against Garland also struck an ironic note on Monday. The former judge would have been on the bench for more than five years by now were it not for the minority leader’s action. Instead, he was selected by Biden to be attorney general, and is now faced with the task of dealing with a political storm over the Trump administration’s apparent use of the Justice Department to target an enemies list including Democratic congressman and media organizations including CNN. Those abuses were among those encouraged by the failure of McConnell’s GOP ever to rein in Trump.

Democrats wait on Breyer

In the next few days, McConnell’s Machiavellian intervention is sure to supercharge speculation among Democrats about the timing of the possible retirement of liberal Justice Stephen Breyer.

If Democrats cannot replace Breyer, 82, on the Court this year or next while they have the slimmest possible margin in the Senate, they risk a 7-2 conservative majority if future elections go the GOP’s way and Breyer eventually leaves the court. That would mean decades of right-wing jurisprudence, no matter what voters want.

Nervousness over Breyer’s intentions was already running at high levels in Washington as the end of the current Supreme Court term approaches, the moment when some previous Justices have retired.

On CNN’s “State of the Union” on Sunday, progressive Democratic Rep. Alexandria Ocasio-Cortez of New York said that she believed that given the circumstances, Breyer should make his exit. “I would probably lean towards yes,” Ocasio-Cortez told CNN’s Dana Bash.

Speculating about a Supreme Court Justice’s future is a sensitive business and in questionable taste given Breyer’s age — although there is no sign he is in fragile health. In the rarified marble halls of the building hosting the nation’s top bench, such talk may also offend and backfire — one reason why many Democrats are tiptoeing around the issue in public.

But it is not an exaggeration to say that the death in office of liberal icon Ruth Bader Ginsburg shortly before Trump lost the election was a disaster for liberals and fundamentally reshaped the nation. Democrats are desperate that the same thing doesn’t happen again, one reason why they hope Breyer retires while Biden still has a good chance of replacing him. It wouldn’t be a sure thing in a 50-50 Senate. But a Biden nominee ought to squeak through.

Playing the midterm long-game

Most political strategists believe McConnell’s work in holding a Supreme Court seat open in 2016 helped galvanize social conservative turnout around Trump, despite his lack of a long record of support for such causes and a checkered personal life.

It is possible that this time McConnell’s goading could serve to fire up Democratic activists and stoke liberal turnout in the midterms. It’s curious however that the Supreme Court has never seemed to motivate progressives during elections in the same way it got conservatives to the polls. Maybe a conservative majority for years to come will change that.

Another result of McConnell’s lightning rod comments may be to inflame Democratic angst and perhaps worsen simmering conflicts between the party’s progressives and moderates already hampering hopes for Biden’s agenda.

His warning is already fueling concerns among liberals about attempts by the President to conclude a bipartisan infrastructure deal well below his initial specifications.

After all, the case for doing a deal with Republicans whose leader is plotting to not just derail his presidency but is showing his hand in yet another bid to reshape the Supreme Court will be hard for liberals to take.

Renewing the filibuster debate

The Senate minority leader’s comments are also adding fresh momentum to the vocal but so far thwarted attempts by liberals to convince Democratic moderates to abolish Senate 60-vote filibuster rules that enable McConnell to use his minority to thwart Biden’s ambitious legislative plans.

“Senator McConnell is single-mindedly focused on protecting the broken status quo that preserves his power and benefits his special interest allies,” said Eli Zupnick, spokesperson for Fix Our Senate, a coalition of groups seeking reform of the chamber.

“This is just one more reminder that the filibuster must be eliminated as a partisan weapon Sen. McConnell can wield to continue his gridlock and obstruction.”

The most fascinating thing about McConnell’s interview with Hewitt was that the longtime senator was talking as if he was the one in power, rather than Senate Majority Leader Chuck Schumer of New York. But in a way, he is, given the weight granted to the minority in the Senate by the filibuster.

Many Democrats worry that if they don’t remove the need for a 60-vote supermajority to pass their agenda, McConnell would do so in a future GOP Senate to pass a right-wing wish list of laws on guns, abortion and tax reform if the GOP also controls the House.

But he insisted that he was committed to Senate traditions.

“It requires us to have a 60-vote majority to do things. That’s been the way the Senate’s been for quite a long time. President Trump wanted me to get rid of it, and I said politely, ‘No, we’re not going to do that,’ ” McConnell told Hewitt.

Such respect for the Senate is seen by many of McConnell’s critics as conflicting with his handling of Supreme Court nominees. After all, McConnell responded to Democrats eliminating the filibuster for judicial picks by applying the exception to Supreme Court justices. That move as majority leader in 2017 paved the way for what is likely to be his most lasting legacy — a conservative Supreme Court that endures for years.

For such a prize, he’ll happily endure no end of liberal condemnation.