How to Stop McConnell from Rigging the Courts

In an interview, McConnell implied that a GOP Senate will never confirm a Dem nominee to the Supreme Court

During a Monday appearance on Hugh Hewitt’s radio show, Senator Mitch McConnell said something that would only be shocking to the willfully blind. After repeatedly patting himself on the back for stealing a Supreme Court seat in 2016 and turning around to violate his own principle by further rigging the courts in 2020, McConnell announced an even more aggressive power grab. Here is the transcript of the exchange:

Hewitt: That’s why I think people who are against Justice Breyer stepping down right now are just nuts. If he retired next year after the abortion case, I just don’t see him retiring with Dobbs and the 2nd Amendment on the docket, and possibly affirmative action. Now let me ask you about the key thing, Leader. About the 2023 term. Again, if you were back as the Senate Republican Leader, and I hope you are, and a Democrat retires at the end of 2023, and there are 18 months, that would be the Anthony Kennedy precedent. Would they get a fair shot at a hearing, not a radical, but a normal mainstream liberal?

McConnell: Well, we’d have to wait and see what happens.

It’s easy to get caught up in the calendar implications of McConnell’s statement. It’s understandable to panic about the fact that Justice Stephen Breyer seems so naive about the state of American politics yet is likely to stay on the court past the 2022 election. But we should be crystal clear that McConnell is elucidating an entirely new principle — a Republican Senate will never confirm a Democratic president’s nominee to the Supreme Court. It doesn’t matter when the vacancy occurs or who the president nominates to fill it. If a Republican can prevent that appointment, it is their duty to do so. The blocking of Garland is not the exception; it’s the rule.

Now that McConnell has announced his plans in true Batman villain form, the question for Democrats is how do we respond?

Tit for Tat Ain’t It

One option for Democrats would be to adopt the McConnell approach. When it comes to the original McConnell rule about not filling a Supreme Court vacancy in a presidential election year, I believe Democrats are already there. For all the tilting at bipartisan windmills, I am 100 percent confident that had the Democrats been in control of the Senate in 2020, they would have prevented Trump from filling Ruth Bader Ginsberg’s seat. Even if Joe Manchin and Kyrsten Sinema tried to undermine the process as they sought out endorsements from No Labels and applause at local Chamber of Commerce meetings, there would be enough Democrats to stop them from sinking the entire enterprise out of naive vanity.

Democrats could respond to McConnell’s 2023 threat by vowing to do the same thing. Denying a Republican President the opportunity to fill a SCOTUS seat would be more than satisfying and quite justified. However, in the end, Democrats will lose this game more often than we will win. The malapportionment of the Senate is so biased towards Republicans that there will be many more times when a Democratic president is saddled with a Republican Senate than vice versa. Without a bolder approach, the gap between the ideological lean of the court and the politics of the country will continue to grow.

What a Real Response Looks Like

Sahil Kapur of NBC News summed up McConnell’s gamble as follows:

“The way to understand Mitch McConnell’s actions on blocking Garland in ‘16, to reversing that standard for Barrett in ‘20, to suggesting he’d block Biden in ‘23/‘24: He is betting that Democrats won’t do anything to retaliate when they have power. So far that bet is paying off.”

Sadly, too many Democrats are willing to turn the other cheek to McConnell’s aggression. This passivity opens the door to even more aggressive Republican attacks on democracy and paves the way for a stolen election in 2024. There is so much Democrats can and must do, but here are some specific ideas of what a comprehensive restructuring of the courts would look like:

  • Supreme Court Expansion: The only true way to unrig the courts is by adding two to four justices to the Supreme Court. Counter to much of the mouth-frothing of Republicans, the number nine is nowhere in the Constitution. The founders left the number of justices on the Supreme Court up to Congress and the president. There is ample precedent for changing the number. Congress made it five justices in 1801. They expanded it to seven in 1807. In 1837, they made it nine. The Supreme Court was increased to ten in 1863. When President Andrew Johnson was impeached but not removed, Congress reduced the size of the court to seven to prevent him from making lifetime appointments. Once Johnson was gone, it was changed back to nine.

    Expanding the Supreme Court is more within the mainstream of American politics than Mitch McConnell’s decision to shrink the court to eight justices during a much-contested presidential election that could have ended up in the courts.

  • Lower Court Expansion: Congress used to increase the number of federal judges to keep up with a growing population and caseload, but politics have kept the number of judges static for a very long time. Back in January, Senator Schumer expressed openness to the concept of lower court expansion. Even without McConnell’s misdeeds, expanding the lower courts is the intelligent thing to do. Some experts believe lower court expansion would qualify for the budget reconciliation process and avoid the filibuster problem sinking much of the Democratic agenda.

  • Eliminate the “Blue Slip Process”: Senate rules grant home-state senators a veto over nominees for seats located in their states. In the Obama years, the Republicans abused this rule, otherwise known as the “Blue Slip Process,” to slow down the confirmation of Obama nominees even when Democrats controlled the Senate. When Trump became president, the Republicans changed the rules so that the “Blue Slip Process” only applied to district court nominees. This change helped ensure that Trump and McConnell could stack the courts with unqualified Right-Wing hacks. With Biden in the White House, Senate Democrats have maintained the Trump Era rules but resisted pressure to go a step further and get rid of blue slips altogether. An aide to Senate Judiciary Chair Dick Durbin explained the decision to Politico:

    “It’s our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states.”

    With all due respect to this hardworking and likely underpaid staffer, anyone who expects Republicans to act in good faith should not be working in American politics. If Democrats do not eliminate blue slips, it’s likely that they will end their Senate majority with judicial vacancies that we may never get a chance to fill.

The above is easy to do on paper. It just takes fifty willing Senate Democrats and a presidential signature. I know this seems fanciful at a time when some Democratic Senators value preserving the filibuster over protecting voting rights and would rather play bipartisan footsie on meager infrastructure bills than confront the rising tide of nationalist authoritarianism. Talking about court expansion and these other ideas can feel like screaming into the void these days. But it’s incumbent for all of us to sound the alarm and push the party to do things that may seem impossible today. McConnell and the Republicans are not going to stop trying to rig the courts until they pay a price for doing so. They act because they believe Democrats won’t react. We fail to prove them wrong at our own peril.