Democrats and progressives stepped up their calls for Supreme Court Justice Stephen Breyer to step down Monday after Senate Minority Leader Mitch McConnell (R-Ky.) said he would not permit a vote on a potential Biden nominee if Republicans control the chamber in 2024.
“I don’t think either party, if it controlled [the Senate], if it were different from the president, would confirm a Supreme Court nominee in the middle of an election [year],” McConnell told radio host Hugh Hewitt.
The Kentuckian then raised the stakes by refusing to commit to giving a Biden nominee a vote in 2023 if Republicans retake the Senate in next year’s midterm elections, telling Hewitt, “We’d have to wait and see what happens.”
McConnell’s comments led to outrage on social media, with Rep. Mondaire Jones (D-NY), tweeting: “When I became the first person in Congress to call for Justice Breyer to retire now, while President Biden can still appoint a successor, some people asked whether it was necessary. Yes. Yes, it is.”
“Certainly feels good to yell online about this, but the only audience that really matters is Stephen Breyer, [Sen. Joe Manchin], [Sen. Kyrsten Sinema], and a handful of other Senate Dems who are hiding behind them,” added former Obama speechwriter Jon Favreau, referring to two Democratic senators who have spoken out against eliminating the filibuster. “Anyone got a plan to persuade that crew?”
“Can someone show this to Stephen Breyer where he lives in outer space,” chimed in Favreau’s fellow former Obama speechwriter and podcasting colleague Jon Lovett.
“Justice Breyer is playing a reckless and irresponsible gamble with the future of hundreds of millions of people,” proclaimed commentator Matt Yglesias, while Mother Jones magazine’s Washington bureau chief David Corn warned that “Justice Breyer ought to learn from the RBG and Garland precedents.”
McConnell famously refused to vote on Barack Obama’s nomination of Merrick Garland (now attorney general) to replace Justice Antonin Scalia following the latter’s death in 2016. Donald Trump nominated Neil Gorsuch to take Scalia’s place following Trump’s victory in the 2016 presidential election. In the fall of 2020, McConnell helped shepherd Trump’s nomination of Amy Comey Barrett through the Senate in the weeks following the death of Justice Ruth Bader Ginsburg.
The 82-year-old Breyer, who was nominated to the high court by Bill Clinton in 1994, is the oldest current justice and is identified as a member of the court’s liberal wing, along with Justices Sonia Sotomayor and Elena Kagan. With more than 26 years of service on the Supreme Court, Breyer is also the second-longest tenured current justice, trailing only Clarence Thomas.
Breyer was already on progressives’ bad side after he spoke out in April against expanding the Supreme Court, a practice known as “court-packing.”
In a virtual lecture at Harvard Law School, Breyer warned that such a drastic action would undermine “the trust that the court has gradually built.”
“I hope and expect that the court will retain its authority … which was hard won. But that authority, like the rule of law, depends on trust,” he said. “A trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”