By David C. DeWitt
U.S. Senate Majority Leader Mitch McConnell, R-Ky., has used his leadership position to exercise raw political power in shaping the federal judiciary for many decades to come, and he’s been enormously successful. The death of Justice Ruth Bader Ginsburg has brought McConnell to the zenith of that power.
A question never existed as to whether he would use it now to cinch a right-wing reactionary majority on the nation’s highest judicial body by confirming President Donald Trump’s third U.S. Supreme Court appointment. Any ideas of hypocrisy, shame, constitutional principles, or precedent, miss the point. This is about power. Mitch McConnell, fundamentally, is about power, above all else.
McConnell used the “precedent” rhetoric to justify his unscrupulous behavior in 2016, and is doing so again now to justify his hypocritical reversal. It’s just rhetoric, copied almost verbatim over the weekend by Ohio U.S. Sen. Rob Portman.
Their power grab is not shaped by any deep belief in precedent, which is why they can use the same argument in contradictory ways. Precedent was never determinant; their actions were already decided. “Precedent” is merely a political justification.
For more than 40 years, control over the federal judiciary has been the longest running political power game among Republicans. McConnell knows that this is his legacy, so he’s always been willing to change his position to suit his needs.
“Breaking the rules to change the rules is un-American. I just hope the majority leader thinks about his legacy, the future of his party, and, most importantly, the future of our country before he acts,” McConnell said in 2013 as minority leader when Democrats pushed through a filibuster change for non-Supreme Court federal judicial nominations.
They did so because, at that time, 79 of President Barack Obama’s federal judiciary nominees had been blocked by Republican filibusters, compared with 68 in the entire previous history of the American Republic.
Fast-forward to 2017, and McConnell as majority leader did exactly what he had himself previously deemed “un-American,” extending the so-called “nuclear option” to Supreme Court nominations in order to end debate and quash filibuster on the Trump nomination of Justice Neil Gorsuch.
Portman, by following McConnell’s rhetorical lead, gives the game away when he argues that “when the presidency and the Senate are controlled by the same party, the precedent is for the president’s nominees to get confirmed.”
The key word in that sentence is party, not precedent. Boiled down, Portman’s statement is a naked admission that this is about partisan power politics. If it weren’t, party affiliation would have no role to play.
The power game revolves around the lifetime nature of judicial appointments. Republicans face a demographic nightmare coming in America.
As America becomes more diverse, Republicans’ ability to win majorities in Congress and to hold on to the White House will become ever-more-difficult. (Their current embrace of Trumpian cultural and racial division as motivating wedges for their base can be heard as a sort of political swan song.) Republicans have lost the popular vote in six of the last seven presidential elections.
With two U.S. Senators from each state, Republican Senators currently represent about 153 million Americans compared to Democrats representing 168 million. This means that this reactionary federal judiciary, and one-third of the U.S. Supreme Court, will be shaped by a president who lost the popular vote by 3 million and confirmed by a Senate majority representing 15 million fewer Americans than the Senate minority.
If McConnell and Portman want to couch their argument in what the majority of Americans have chosen, this isn’t it.
But where they can assert lasting power while they still have power now is in the third branch of government, with lifetime federal judiciary appointments and solid control over the U.S. Supreme Court.
In eight years as president, Obama confirmed 55 federal appellate court nominees. Trump has installed 53 in under four years.
Under McConnell’s Republican-led Senate, Trump has appointed more than 200 federal judges total (George W. Bush appointed 327 in eight years. The Democratic Senate confirmed 68 in Bush’s final year. McConnell’s Senate approved 20 of Obama’s).
Part of the reason for McConnell’s success under Trump was his obstruction of Obama. McConnell confirmed the fewest judges since President Harry Truman during Obama’s last two years in office, leaving Trump a large number of vacant seats to fill, which he has.
Many of Trump’s appointees are in their 30s and 40s, meaning that the federal judiciary, and now the Supreme Court, will carry Trump’s imprint for many decades to come. This is their design.
By winning this game, they will have installed a federal judiciary far out of step with the majority of Americans on many issues. Overturning Roe v. Wade? Three-quarters of Americans say they want to keep the landmark ruling in place.
Around 63 percent of Americans support equal marriage rights for same-sex couples. A Fox News poll found that 53 percent of Americans support the Affordable Care Act, which the Trump administration is looking to have the U.S. Supreme Court axe.
Installing a reactionary federal judiciary and U.S. Supreme Court majority will ensure minority right-wing views carry the day in federal courts for many years, no matter which direction public opinion and political control over the other two branches of federal government head.
Under a 6-3 majority, the Supreme Court will accept more controversial cases and thereby issue more controversial landmark rulings. At the very least, progress will be stopped in its tracks, if not recklessly rolled back — America may well see our first activist reactionary court since Melville Fuller’s was overturning child labor laws in the 1890s.
With a federal judiciary unwilling to assert nationally the constitutional rights of workers, women, minorities, the LGBTQ+ community, or any other vulnerable populations, America will enter a new era of localized civil rights and protections.
Put simply, those who live in some states will have many fewer rights and protections from discrimination and exploitation than those living in other states. Unequal freedom among Americans will become McConnell and Portman’s true legacy. Local and statewide elections in non-presidential years will matter more than ever.
This power grab was decades in the making, and its consequences will reverberate just as long.
David C. DeWitt is the editor of the Ohio Capital Journal, a sibling site of the Pennsylvania Capital-Star, where this piece first appeared.