The Shamelessness of Mitch McConnell

Picture by Hilary Stone Ginsberg

Senate Minority Leader Mitch McConnell does not care about much in politics — except the exercise of power for its own sake. Former President Barack Obama recalls in his memoir that McConnell told then Vice President Joe Biden, when discussing the policy merits of a bill, “You must be under the mistaken impression that I care.” Legislating for the public good has never been a goal of the Kentucky senator. 

But, McConnell does care about the courts, seeing the federal bench as a tool to entrench Republican dominance of one branch of government, at least, for decades. He worked with former President Donald Trump to pack the courts. He has used every trick in his legislative toolbox to insure conservative majorities in the court system. When he could, McConnell choked off Obama’s nominees to district and appellate courts and rammed through Trump’s. He notoriously denied Obama’s last nominee to the Supreme Court a hearing, then forced through Trump’s final nominee only days before the 2020 presidential election. 

In his single-minded pursuit of judicial power, McConnell has made up the rules on the fly on who gets to appoint whom and who approves which nominee, finding a justification — no matter how absurd — to fit every situation. When conservative hero Justice Antonin Scalia died, McConnell refused to consider Merrick Garland as the replacement, saying the Senate should not vote on a Supreme Court nominee in an election year. Never mind that Scalia died in February 2016 and Obama named Garland in March. Never mind that the Senate previously approved justices in an election year.

Four years later, McConnell had to come up with a codicil to the rule about not approving a justice in an election year. When Ruth Bader Ginsburg died in September 2020, Trump named Amy Coney Barrett, whose nomination McConnell ushered through the Senate on October 26. What about the 2016 rule? Oh, McConnell told us in 2020, he only meant the Garland rule to apply when the president and the Senate majority are from different parties. When the president and the Senate are from the same party, then the rule is different and the Senate can approve the nominee up to election day. McConnell would even argue, I suppose, up to the inauguration of the next president. 

Now, the codicil has its own codicil! McConnell suggests that if Republicans regain control of the Senate in 2022 and a vacancy to the high court occurs in 2023, he might block a nomination made by President Biden. When conservative radio host Hugh Hewitt asked McConnell about this scenario, the senator replied, “We’d have to wait and see what happens.” That is McConnell-speak for the following: If my majority in the Senate is strong enough to withstand a defection or two from moderates in my caucus, I will block a Biden-named justice. Senate Judiciary Chair Dick Durbin of Illinois summed up McConnell’s hypocrisy: “Are you surprised? I mean he would change the rules a third time if he could to make sure that they get the choice on the next Supreme Court justice.” Durbin added, “He’s not much for precedent and tradition when it doesn’t serve him politically.”

McConnell’s shenanigans are patently absurd! The Constitution says the president has the power to nominate judges to the Supreme Court with the “Advice and Consent of the Senate.” That is it! Nothing more. It takes a tortured reading of our founding document to turn “Advice and Consent” into blocking presidential nominees and packing the courts. But, McConnell is a master at tortured readings. It is also extraordinarily hypocritical of a leader of the party that professes — at least, it once did profess — fealty to a strict constructionist interpretation of the Constitution. Moreover, there is nothing, absolutely nothing, in the Constitution about political parties. Indeed, the Framers of the Constitution thought parties had no place in a republic. James Madison, revered as the Father of the Constitution, wrote in Federalist 10 that a “well-constructed Union” would “break and control the violence of faction (the 18th century term for party).”

McConnell’s rationales may constitute shenanigans, but they are explicable shenanigans. As much as McConnell cares about the courts, he cares more about being majority leader. He knows that Republicans are in danger of being frozen out of power in the coming years as the Republican base of older white men shrinks as a percentage of the population. The looming electoral catastrophe facing Republicans is a spur to pack the courts now. It is also a spur to use the courts as a political weapon to mobilize conservative voters. McConnell knows that the only way for Republicans to regain control of the Senate is to encourage conservatives to vote in the 2022 midterms. One issue that motivates many Republican voters is control of the courts, which is why McConnell now is threatening to deny a president from the opposing party any chance to name a justice to the Supreme Court.

This may be absurd and not what the Founders intended, but it is hardball politics, and Democrats must also play hardball to stay in the game. For starters, Democrats must persuade the 82-year-old Justice Stephen Breyer to retire now so Biden can name his replacement while Democrats have control of the Senate. No justice wants his or her retirement to appear politically motivated, but McConnell has turned Senate judicial approval into a political matter, so it is too late for Breyer to be squeamish about leaving. He must not make the same mistake Ruth Bader Ginsburg made in sticking around as a justice until her death. Ginsburg deservedly is a liberal icon, but she erred by not retiring when Obama could have named her successor.

Democrats should also consider increasing the number of justices on the Supreme Court to equalize the court’s ideological makeup. Such a move has the odious repute of “court-packing,” but the Constitution is silent on the number of justices on the high court, and in the early years of the Republic the number fluctuated. More importantly, McConnell’s high-handed, extra-Constitutional manipulation of the constitutional requirement that the Senate “Advice and Consent” has resulted in his packing the court, giving Democrats every justification to act.

If raising the number of justices proves unpalatable, Democrats can move to reform the Supreme Court. Reform could adjust the personnel of the court by shortening their terms of office through term limits or granting every president the power to appoint two new justices regardless of how many justices wind up serving at any given time. Other proposals include devising a process to select justices on a bipartisan basis. 

None of this would be easy, particularly proposals suggesting bipartisan action. But, Democrats must act. The nation is becoming more progressive. President Biden has an ambitious program that may or may not get through Congress. But, regardless of whether Biden or some future progressive president — backed by overwhelming majorities in Congress — gets to enact liberal policies, Democrats must insure that those policies are not then nullified by Mitch McConnell’s shameless legacy of a conservative packed court.

Posted June 18, 2021

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