Justice Stephen Breyer in 2014 Credit: National Archives

On February 13th, 2016, Mitch McConnell took less than two hours after Antonin Scalia died to publicly declare, “this vacancy should not be filled until we have a new President.” And it was not. This is not a politician known for subtlety.

Despite the conventional wisdom among progressives that McConnell is the proverbial Lucy from “Peanuts”—one who disingenuously holds the football for you to kick before pulling it away at the last second—he is more likely to save time and just throw the football in your face.

This week McConnell was once again brutally unequivocal. On The Hugh Hewitt Show, the conservative host raised the attempts by some Democrats to cajole Supreme Court Justice Stephen Breyer into retirement while they control the Senate confirmation process. Then he asked McConnell, if he returned to the Majority Leader position after the 2022 midterm elections, and if a Supreme Court vacancy opened up in 2024, “would the rule that you applied in 2016” to block Merrick Garland, once again apply?

Of course, the only “rule” applied was the rule that lets the Majority Leader control what goes to the Senate floor. But as McConnell put it, “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.” In other words, McConnell would block another Supreme Court nomination.

McConnell was slightly more equivocal when Hewitt asked if in 2023, “would they get a fair shot at a hearing [for] not a radical, but a normal mainstream liberal [nominee]?” McConnell responded, “Well, we’d have to wait and see what happens.” This answer fell well short of guaranteeing a fair hearing, leaving the door wide open for a year-plus blockade.

Breyer is reportedly hesitant about a “strategic retirement” because he worries it would be too political. Timing his departure to the Democrats’ control of the chamber might erode the legitimacy of the Court, or so the thinking goes, even though the last retiree, Anthony Kennedy, made sure to leave on Trump’s watch. In the midst of the pressure campaign last month, Breyer said in a speech, “If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

If McConnell wanted to appeal to Breyer’s high-minded sensibilities and seduce him into sticking around, he would send assuring signals that upon Breyer’s departure, planned or otherwise, he would see to it that the seat would be filled in traditionally cooperative fashion. Instead, McConnell is practically screaming in Breyer’s ear: DON’T BE STUPID. QUIT NOW!

Breyer risks applying the correct principle in an incorrect manner. We should want our judiciary to be above crude politics. But getting on the Court involves politicians and sometimes politics can be detected in the opinions issued from the bench. As Bloomberg Opinion columnist and political scientist Jonathan Bernstein recently wrote, “The Supreme Court, and in fact the entire judicial branch, already is ‘political.’ It’s always been political. It’s political by design … That the courts are political doesn’t mean that they’re simply partisan, but the relatively recent view that politics has nothing to do with the job of being a judge would’ve been unrecognizable to the Framers, who expected politicians to fill the role.”

Granted, our norms have evolved to such a degree that nominating politicians to the Supreme Court has fallen out of fashion. (Bill Clinton was the last president to try to pick a politician, having considered New York Governor Mario Cuomo and his Interior Secretary and former Arizona Governor Bruce Babbitt. But disinterest from Cuomo and resistance to Babbitt prompted Clinton to turn to a judge favored by Republican senator Orrin Hatch: Ruth Bader Ginsburg.) But even though presidents have generally chosen federal judges, it is impossible to ignore politics in the nomination and confirmation process. We can only try to contain it.

If Breyer wants to mitigate politicization, he should read the political landscape for what it is. The judicial filibuster is gone. Parties now can more easily nominate ideological candidates when they control both the White House and the Senate. Senate majorities can easily block nominees when the president is from the opposite party.

The remaining hope for a depoliticized Supreme Court rests in the other part of the Founders’ design: the lifetime appointment. Once a Justice is seated, that person need not comply with partisan demands to keep the seat. We’ve already seen judges appointed by Donald Trump refuse to help him steal the 2020 election. But core Republican Party’s constituencies, most notably abortion opponents and gun rights activists, may have been able to install a sufficient number of Supreme Court Justices with enough ideological gusto to deliver their wishes sans pressure.

On its own, the loss of the judicial filibuster is a political wash. Each side can breezily fill judicial vacancies whenever the political pendulum swings in their direction, creating over time a rough ideological balance. And that balance is further bolstered by the lifetime appointment. But the rough balance risks being knocked out of whack if one party’s judges make strategic retirements while the other party’s judges refuse to do the same.

Ruth Bader Ginsburg, maddeningly, shunned a strategic retirement when Democrats controlled the White House and Senate, then hung her hopes on a deathbed wish for political chivalry from a Republican White House and Senate. When this wish was not granted, the Supreme Court was politicized further. Since 2016, Republicans have been able to block the confirmation of the moderate Garland in favor of the conservative Neil Gorsuch to fill the seat of Scalia, swap a swing vote in Kennedy for a more reliable conservative in Brett Kavanaugh, and replace the pro-choice Ginsburg with the demonstrably anti-abortion Amy Coney Barrett.

If Breyer knows of some secret plan for Clarence Thomas and Samuel Alito to retire when Democrats control the White House and Senate, then he would be justified in sticking around. But if Republican jurists remain politically strategic with their retirement plans, Breyer should want to do his part to neutralize politicization and mirror his counterparts.

Breyer may understandably be frustrated by the progressive pressure. Being a Supreme Court justice is a sweet gig and being told you have an obligation to give it up is bound to annoy—even if he has a range of hobbies from architecture to cooking with which to occupy his twilight years. In an ideal world, it shouldn’t matter when Supreme Court vacancies arise, but we live in a world where, with a net pick up of one Senate seat, McConnell can largely shape the judiciary. And he just told us what he plans to do with that power.

But today, Justice Breyer has the power. Instead of giving the football to McConnell, dropkick it yourself through the goalposts.

Bill Scher

Bill Scher is political writer at the Washington Monthly. He is the host of the history podcast When America Worked and the cohost of the bipartisan online show and podcast The DMZ. Follow Bill on Twitter @BillScher.