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On Monday, Senate Minority Leader Mitch McConnell told conservative radio broadcaster Hugh Hewitt that he would refuse to allow President Joe Biden to fill a seat on the Supreme Court in 2024 if Republicans win the Senate next year. McConnell also suggested that he would not allow Biden to fill a vacancy on the Supreme Court in 2023, even if the president nominates an “ordinary liberal.” These comments are not remotely surprising. The Republican Party has entrusted much of its agenda to the federal judiciary, a strategy that requires lawmakers to ruthlessly stifle Democrats’ influence on the courts. To that end, the Republican-controlled Senate will not once again confirm the Democratic president’s nominee to the Supreme Court. Not in an election year or any other year. Not in your life or mine. never.
McConnell played a bit timid when discussing the possibility of a Supreme Court confirmation in 2023, telling Hoyt, “Well, we’ll have to wait and see what happens.” But anyone who seriously believes that the Republican-controlled Senate will confirm Biden’s nominee that year – or even hold hearings – is deluding themselves. McConnell’s approach to judicial assertions reflects two fundamental principles of the modern Republican Party: first, that only the federal judiciary can enforce key provisions of the Republican Party’s platform that are too unpopular to pass through the democratic process; Second, that only conservative judges faithfully implement the constitution, while liberals draft it.
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These principles may seem contradictory to each other. But the Republicans orchestrated them by convincing themselves that their platform fully reflected the Constitution. Thus, in the eyes of the Republican Party, when liberal justices pass decisions aligned with Democrats’ priorities, they are judicial activists who betray their duty to enforce the law as it is written. When conservative judges pass decisions aligned with Republican priorities, they are, by contrast, independent jurists who respect the design of Alborz.
This design, according to Republicans, includes a number of policy elements that the Republican Party has struggled to enforce through legislation due to a lack of popular support. Keep in mind gun laws. Most Republican politicians oppose the assault weapons ban and support the right to carry a concealed firearm in public. But the Republicans failed to repeal the assault weapons ban currently on the books in seven states and the District of Columbia. They also failed to rescind the strict limits on concealed carry that remained in nine states.
Republicans no longer need to push these policies democratically, though, because they have stacked federal courts with Second Amendment buffs keen to enforce these policies by court order. Indeed, the Supreme Court appears poised to overturn strict limits on concealed carry, thanks to the votes of President Donald Trump’s nominees. And earlier this month, a conservative federal judge overturned the California assault weapons ban. Furthermore, an ever-increasing number of Trump judicial candidates have questioned the constitutionality of other gun laws, including bans on large-capacity magazines, restrictions on handgun transfers, and the possession of firearms by people who have been convicted of crimes or have been coerced.
Republicans haven’t passed any major gun rights legislation under Trump, but they didn’t need to: The confirmation of 234 federal judges, most of them fanatics of the Second Amendment, is a more effective and sustained attack on gun safety laws than any bill could ever. is being. And that story will continue to unfold across a wide range of GOP policy priorities, from canceling affirmative action to blocking environmental protections to shredding voting rights.
This plan—which fills the judiciary with partisans and ideologues who will carry out GOP priorities from the court—may seem inconsistent with the right’s persistent complaints of “judicial activism.” However, Republicans have formulated another principle to balance this circuit: they insist that conservative judges simply apply the law and the constitution as written, while liberal judges impose their political preferences on the people under the guise of impartial judgment. When liberal judges overturn laws banning same-sex marriage, Republicans assert, this is illegal judicial activity. When conservative judges overturn laws protecting voting rights, it’s just an application of the Constitution. If you think progressive jurisprudence is fundamentally illegitimate, you should do everything you can to get liberal judges off the bench. And that’s what McConnell, along with most of his party bloc, swore to do.
Democrats have not adopted McConnell’s tough approach to the courts.
From this ideological point of view, the Republican crusade against Democrats’ judicial candidates is not only acceptable, it is noble in every sense of the word. The Republican Party considers itself the defender of the Constitution, protecting the judiciary from liberal lunatics by any means necessary. This tactic predates McConnell’s blockade of Merrick Garland in 2016, and bypasses the Supreme Court. The Republican-controlled Senate has confirmed only two of President Barack Obama’s nominees to federal appeals courts in his last two years. McConnell refused to even consider most of these candidates, filling vacant seats for years.
The senator was not punished for this behavior. On the contrary, his maneuver worked: Republicans occupied the Senate and seized the presidency, allowing Trump to fill the more than 100 seats that opened under Obama. In light of this track record, it seems highly unlikely that McConnell will confirm any of Biden’s nominees to federal appeals courts if Republicans take over the Senate in 2022. In fact, it’s hard to imagine a GOP-controlled Senate confirming another appeals court. A candidate presented by a Democratic president. Now that all-out obstructions have proven successful and the Democrats have unilaterally disarmed, there is no incentive for the Republican Party to change its behavior. The Senate’s massive and consistent structural tilt toward the Republican Party means there will likely be no reason for Republicans to compromise.
Again, part of the problem is that Democrats have not taken McConnell’s tough approach to dealing with the courts. They confirmed 10 of President George W. Bush’s nominees to federal appeals courts after he took over the Senate in 2006—five times as many as Republicans confirmed after they took over the Senate in 2014. Most Democratic lawmakers remain opposed to expanding the Supreme Court to soften the influence of judges appointed after McConnell. They changed the rules of the game, banning Garland in Obama’s final months in office and confirming an Emmy Connie Barrett in Trump’s final weeks. Even Democratic-appointed justices seem oddly naive about the partisan reality of today’s judicial assertions. Figure A, of course, is Justice Stephen Breyer, who is said to be resisting calls for his retirement despite the fact that Democrats would miss the opportunity to replace him if an elderly senator in a state with a Republican governor gives up the ghost.
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Republicans have nothing to lose and everything to gain by cornering Biden’s judicial candidates. Already, Republican senators are concocting ridiculous reasons to oppose them. Kitangi Brown-Jackson, who Biden has nominated to a federal appeals court, got just three Republican votes to submit her nomination for debate on Thursday. In 2013, it was confirmed in a district court by an audio vote. Jackson’s qualifications have not changed over the past eight years, but circumstances have: She is now the best contender to fill Breyer’s seat (if he steps down). The vast majority of Republican senators who voted against it last week were sending an unmistakable message that they stand with McConnell on the justices. Forget 2024 and 2023 — if the Senate overturns tomorrow and Breyer retires the next day, McConnell or his successor will keep his seat vacant for as long as the Democrat is in the White House, or as long as the Republicans will hold the Senate.
There may be nothing Democrats can do about such a blockade if and when it happens. That’s why they need to work in the courts now. Biden is already appointing candidates at a commendable pace; Senate Majority Leader Chuck Schumer turned the confirmation machine into high gear; And left-leaning judges throughout the judiciary are stepping aside to ensure that a Democrat takes their place. Only Breyer decides when to retire. But Democrats can help him see the light by filling every vacancy with the urgency it deserves.
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