(Democrats do not control a majority of Senate seats -- it is tied, 50-50 -- but Vice President Kamala Harris can break ties in the party's favor.)
For those Democrats, the sooner the better. Yes, the party will keep effective control of the Senate at least until next year's midterms. But what if Democratic Senator Joe Manchin switched parties, putting Republicans in charge?
Confirming a Biden nominee would become much, much harder. So even if Breyer can wait a year to retire with a Senate under effective Democratic control, why risk it? Retire now and get a relatively young Democrat safely on the Court.
That is why some are freaking out over what Minority Leader Mitch McConnell said Monday in an interview with radio host Hugh Hewitt. In a question about the Court, Hewitt referred back to 2016, when Justice Antonin Scalia died and Barack Obama was president.
Back then, McConnell, then-Senate Majority Leader, blocked Obama's nominee to replace Scalia, Merrick Garland, on the grounds that the Senate -- when it is under control of the opposition party -- has historically not confirmed election-year nominees.
So Hewitt asked: If you regain the majority in 2022 for Republicans...would the rule that you applied in 2016 to the Scalia vacancy apply in 2024 to any vacancy that occurred then?"
McConnell's short answer: Yes. "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."
McConnell then noted that in the election year of 2020, when the Republican Senate quickly President Trump's nomination of Amy Coney Barrett, "We were of the same party as the president." To be frank, there wasn't a lot of news in what McConnell said. Did anyone expect him to say that yes, if he were Senate Majority Leader, he would confirm a Biden nominee in 2024? Now, that would have been news. But McConnell simply said he would stick with his previously-articulated position.
Nevertheless, McConnell set off nightmare flashbacks in some Democratic quarters. "What McConnell is doing is undemocratic," said MSNBC's Joy Reid. "The Bible might even call it wickedness in high places -- AKA evil." Wickedness in high places? Reid's hyperbole suggests the intensity of Democratic feeling about the Court -- and about Mitch McConnell.
But if you were a Democrat, what would you do? Breyer is 82. This August, he will mark his 27th year on the Court. A few years ago, Justice Anthony Kennedy retired at 82 after 30 years on the Court to make way for what became the Brett Kavanaugh nomination. Why wouldn't Democrats want Breyer to go soon?
The fact is, the already incredibly partisan process of confirming a Supreme Court nominee became even more incredibly partisan during the Trump presidency. Justice Neil Gorsuch was confirmed with three Democratic votes.
Justice Brett Kavanaugh was confirmed with one Democratic vote. And Justice Amy Coney Barrett was confirmed with zero Democratic votes. (Of Barack Obama's two Court nominations, Justice Sonia Sotomayor was confirmed with nine Republican votes and Justice Elena Kagan was confirmed with five Republican votes.)
Even now, there is still a little bit of bipartisanship in circuit courts of appeals confirmations. This week, Biden nominee Ketanji Brown Jackson was confirmed to a seat on the Circuit Court of Appeals for the District of Columbia -- an appointment seen as a possible precursor to a Supreme Court nomination. Jackson won confirmation with three Republican votes -- Senators Susan Collins, Lindsey Graham, and Lisa Murkowski.
That bipartisanship would likely go away in a Supreme Court fight. So look for more and more Democrats to support a Breyer resignation. They can't openly campaign for it, lest they alienate Breyer, whose decision it will be. But with Mitch McConnell stating the obvious, and with nomination fights becoming ever more partisan, look for Democrats to act fast if they have the slightest chance.
(COMMENT, BELOW)