I Have A Lot To Say — Part II

Senate Majority Leader Mitch McConnell, a Kentucky Republican.

Is there a bigger hypocrite or a more cynical politician in America than Senate Majority Leader Mitch McConnell?

Perhaps, but the Kentucky Republican’s hypocrisy and cynicism was on display when he signaled that he might consider approving a Supreme Court nomination in the 2020 presidential election cycle should a vacancy occur. “We’ll see if there is a vacancy in 2020,” McConnell said. 

In early 2016, McConnell took a different tack. Then, he refused to allow the Senate to consider the nomination by “this lame duck” President Barack Obama of Judge Merrick Garland to the Supreme Court to fill the seat of the late Justice Antonin Scalia. “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be,” McConnell said.

Justices Brett Kavanaugh and Neil Gorsuch, both appointed to the Supreme Court by President Donald Trump.

That was then, when the lame duck president was Obama and the nominee was a moderate progressive. In 2020, the lame duck president will be Donald Trump, if he stays on office that long, and the nominee likely will be cut from the same judicial cloth as Justices Neil Gorsuch and Brett Kavanaugh. Now, the rule appears to be, according to McConnell — who apparently is making all this up to fit the situation of the moment — “you don’t fill a vacancy created in a presidential year” only if the Senate majority hails from a different party than the president. If the president and the Senate majority are both from the same party, then the president nominates and the Senate confirms. It will be interesting to see what McConnell would say if the Democrats win control of the Senate in November and Trump has a vacancy to fill in 2020. Stay tuned, the rationales could get interesting!

Now, I am not so naive as not to appreciate the penchant of politicians for situational ethics. Political leaders are routinely for one thing one day and against it the next when the ground shifts. But, McConnell is engaging in theater of the absurd here. Trump in 2020 will be just as lame as Obama was in 2016. It makes no difference that Obama was barred constitutionally for running for reelection in 2016 while Trump can seek another term (again, if he is not ousted before). Technically, by the way, lame duck refers to a politician still in office after his or her successor has been elected, though it has come to have added significance at the end of a president’s second term in office. Definitions aside, the operative phrase in McConnell’s 2016 statement should remain his position in 2020: “Let the American people decide.” 

President Barack Obama, with Supreme Court  nominee Merrick Garland.

It is instructive to remember that Obama chose a relatively moderate and not-so-young nominee in Garland. It was another attempt (futile, as were the previous ones on healthcare reform and the stimulus package) to reach out to Republicans. Trump nominated and the Senate approved two hardcore and youthful conservatives in Neil Gorsuch and Brett Kavanaugh for the Supreme Court. Gorsuch replaced Scalia in a stolen seat, but the ideological makeup of the high court did not change. Kavanaugh, however, replaces the moderate, conservative Justice Anthony Kennedy, shifting the court significantly to the right. Trump and McConnell, of course, are under no compulsion to allay the concerns of progressives. But, in Gorsuch and Kavanaugh they gave us two justices out of touch with the American mainstream. Even moderates will find little to like in these two appointees.

McConnell incorrectly cited history to justify his refusal to allow the Senate to consider Garland’s nomination. McConnell told John Dickerson of Face the Nation this past Sunday, “Yeah, you don’t know much history. You have to go back to 1880 to find the last time a Senate controlled by a different party from the president confirmed a Supreme Court justice to a vacancy created in the middle of a presidential election.” Here are the facts: In the twentieth century, most of the vacancies occurred in presidential election years when the president and the Senate majority hailed from the same party. The opportunity for a divided government to confirm a nominee in a presidential election year is rare.  However, in 1987, Republican President Ronald Reagan nominated Anthony Kennedy, who was approved on February 3, 1988, a presidential election year, by the Democratic-controlled Senate in a 97-0 vote. So much for McConnell’s version for history!

President Dwight Eisenhower with Supreme Court nominee William Brennan.

There were two instances when nominees were not confirmed during an election year, but both contradict McConnell’s claim that there is a tradition regarding such nominations. On September 7, 1956, (just two months prior to election day) Justice Sherman Minton announced his retirement from the high court. The Democratic-controlled Senate was not in session, so President Dwight Eisenhower, a Republican, made a recess appointment of William Brennan, who was confirmed as a justice in 1957. There was no hue and cry about nominations in presidential election years, and Brennan’s appointment belies claims of a tradition of leaving seats vacant during election cycles. Then, in 1968, Present Lyndon Johnson nominated Justice Abe Fortas, already sitting on the court, to succeed Chief Justice Earl Warren. Fortas’s nomination was filibustered, not because it was a presidential year, but because of ethical concerns and because Fortas, while sitting as an associate justice, had briefed Johnson on political matters. Johnson withdrew the nomination on October 1, 1968.

McConnell’s motives are all about power. As I explained in Part I on October 9, McConnell has made it his mission to revamp the complexion of the nation’s judiciary, turning it to the right as a bulwark against the prospect of conservatives losing political control in our demographically and socially changing American society. In this he is succeeding.

Historical explanations do not matter.

Posted October 12, 2018

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