The Volokh Conspiracy
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On Monday, Senator Mitch McConnell was a guest on the Hugh Hewitt Show. Anong other subjects, Senator McConnell discussed judicial nominations and the prospect of a Supreme Court vacancy after the 2022 elections.
From the transcript(HH is Hugh Hewitt; MM is Mitch McConnell):
HH: Let me ask you, if you regain the majority in 2022 for the Republicans, and there's a very good chance of that happening, . . . would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?
MM: Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think it's highly unlikely. In fact, no, I don't think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president.
MM: And that's why we went ahead with it.
HH: That's why I think people who are angst about 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?
MM: Well, we'd have to wait and see what happens. You mentioned Justice Breyer. I do want to give him a shout-out, though, because he joined what Justice Ginsburg said in 2019 that nine is the right number for the Supreme Court. And I admire him for that. I think even the liberal justices on the Supreme Court have made it clear that court packing is a terrible idea.
HH: 100% agree. Now President Biden will be advancing many very liberal judicial nominees at the district court level. Democratic senators from their states, when there were two Democrats, blocked many fine judicial nominees, especially in my old state of California, but all across the country. Wherever there were two Democrats, they blocked district court nominees. Will Senator Schumer and his caucus adopt the same deference that you demonstrated towards Democratic senators during your tenure when it comes to Biden nominees in states with two Republican senators for the district court, Senator McConnell?
MM: Well, my understanding is that Dick Durbin, who is now the chairman of the Judiciary Committee, is going to honor the blue slip for district judges. So as you suggest, what that means is in a state where you have one or two Republican senators, they'd have to sign off. They may not be able to choose the nominee, but would have to sign off it. And my understanding is that the new chairman of Judiciary is going to continue that.
The key takeaways from the interview are that a Majority Leader McConnell would follow his own precedent concerning election year vacancy if the Senate and White House are controlled by different parties, and left his options open if the vacancy arose in 2023.
The other notable part of this exchange is that Senator McConnell confirmed that Senate Judiciary Committee Chairman Dick Durbin is observing blue slips for district court nominees, as is traditional. We have multiple district court vacancies here in Ohio, and it appears the White House is only considering nominees who would receive a blue slip from Senator Rob Portman. Note also there was no mention of circuit court nominees in Senator McConnell's remarks. Blue slips have become less important for circuit court nominations, and for good reason, and I do not think Senator Durbin will allow Republican Senators to use blue slips to prevent President Biden from filling open circuit court seats.
Incidentally, I was on the Hugh Hewitt show this morning to discuss McConnell's comments and SCOTUS with University of Texas law professor Steve Vladeck. Audio of our segment will likely be posted on the Hugh Hewitt podcast here.