When Majority Leader Mitch McConnell told a Paducah, Kentucky, audience that if a U.S. Supreme Court vacancy opened up in 2020, “Oh, we’d fill it,” it set off howls of anger from Democrats and their cheering section in the mainstream media.
The statement was, they said, sheer hypocrisy, and gave the lie to McConnell’s claims in 2016 that it would be wrong to confirm a Supreme Court justice in a presidential election year. As they did during the 2016 election campaign when President Barack Obama’s pick, Judge Merrick Garland, languished as McConnell’s GOP Senate majority ignored the nomination, Democrats said Republicans were stealing a Supreme Court seat. They repeated that charge in 2017 when President Trump eventually filled the seat with Justice Neil Gorsuch and then Justice Brett Kavanaugh.
McConnell reacted to the talk about his hypocrisy with the same indifference with which he has treated every complaint from the Democrats as he has masterminded the confirmation of a record number of federal district court and appellate nominees since January 2017.
McConnell Ignores the Noise
Instead, McConnell has ignored the brickbats and concentrated his attention—and the lion’s share of the Senate’s time—on getting conservatives onto federal courts. Earlier this month, the GOP celebrated the confirmation of Trump’s 40th appointee to the federal appellate bench, in addition to even more district court judges. This rate far exceeds that of any other administration in living memory. These judges will serve lifetime appointments and likely have a far greater impact on the way the United States is governed than most members of Congress do.
This not only makes McConnell arguably the most influential Senate majority leader since Lyndon Johnson, but it’s also a tribute to his understanding of the importance of the federal judiciary that far outstrips that of his opponents. Executive power has steadily grown in the last century at the expense of the legislative branch. The administrative state run by presidential appointees runs roughshod over Congress in terms of the power to impose rules and re-interpret laws. That means federal courts have become the only way to check the power of the executive and, consequently, a political battleground of paramount importance.
As such, McConnell, once the man who epitomized the out-of-touch GOP establishment to the party’s grassroots activists and Tea Party insurgents, is now the one person, along with Trump, who is giving the conservative movement victories. Indeed, his single-minded determination to pack the courts with as many conservatives as possible, whether or not it takes rewriting existing Senate rules and transgressing the gentleman’s club ethos that once ruled the upper chamber, has made him the Republicans’ most valuable player on Capitol Hill.
Not that it matters much to him, but McConnell’s willingness to confirm another Supreme Court nominee, should Trump get another chance to fill a vacancy, doesn’t actually contradict the rationale the majority leader gave for his refusal to give Garland a hearing, let alone a vote. There was no modern precedent for a situation in which a president of one party would expect a Senate controlled by the opposition to not only confirm a nominee in an election year but to alter the balance of the Supreme Court. In the past, Democratic leaders like Joe Biden and current Minority Leader Chuck Schumer had warned Republican presidents they would behave much as McConnell did.
Nor could the seat be said to have been “stolen” from Obama, since the Senate always has the right to reject any nominee and Republicans were never going to go along with replacing a conservative icon like Antonin Scalia with a liberal like Garland.
McConnell Went Nuclear in the Best Way Possible
McConnell’s refusal to allow the process to unfold in the normal manner, even if it ended in rejection, was unprecedented. McConnell rightly understood that doing so would make it harder for Hillary Clinton to use the issue during the 2016 campaign than if Garland had gone down to defeat after the sort of brutal hearings (like the ones Gorsuch and Kavanaugh were subjected to) and a dramatic, drawn-out vote.
Had Senate Republicans been led by someone more concerned with preserving the traditionally clubby culture of the Senate and gaining the admiration of the Washington establishment and liberal mainstream media, things might have turned out very differently. Garland might still have been defeated, but a few members of the caucus who wanted to seem bipartisan might have defected and created a liberal majority on the court.
The same is true for McConnell’s willingness to go “nuclear” and end the right to filibuster Supreme Court nominees just as his Democratic predecessor Harry Reid did for lower-court nominations when Obama wanted more of his appointees confirmed. That enabled Gorsuch and Kavanaugh to be confirmed. Indeed, given the stakes involved, had the filibuster remained in place, it’s hard to imagine anyone being confirmed to the court in the foreseeable future, no matter what party is in charge.
McConnell also junked another arcane Senate tradition (albeit one only enforced since the 1950s) in which senators from a judge’s home state had the right to void a nomination by withholding a so-called blue slip. He treated rules about the time needed to debate judicial nominations with the same disdain.
Nobody Likes Mitch, But Mitch Doesn’t Care
The majority leader lacks popular appeal, and his establishment roots have always made him a punching bag for GOP populists. Indeed, he was a target of conservative insurgents in his last re-election race in 2014 and was treated by Steve Bannon and the Breitbart crowd as the right’s public enemy number one for a while, since they unfairly blamed him for Obama’s ability to use his executive power to ram a liberal agenda down the country’s throat.
Yet no other conservative in the last generation has had as much of an impact as McConnell. Without him, Trump would not have been able to confirm even a fraction of the court appointments he made. Nor would he be as certain that the current House Democratic majority’s liberal legislative agenda would not be able to be stopped stone-cold upon arrival in the Senate. Democrats’ claim that he has made the Senate a “legislative graveyard” should remind Republicans of McConnell’s importance as much as the continued griping about Garland.
Old-school Republicans who long for the return to a more genteel era in Washington politics may regret McConnell’s tactics as much as they do Trump’s Twitter account and willingness to troll opponents with intemperate language. But only McConnell’s hardheaded strategic legislative vision has enabled Republican success on Capitol Hill. That’s something that Trump, who was slow to warm to the majority leader, seems to have learned.
They may not love him, but GOP activists should be throwing roses at McConnell every day of the week. The judges he has and will continue to confirm will do more to defend the Constitution and preserve conservative principles than the fiery rhetoric of Tea Party favorites. Democrats’ cries of foul play and hypocrisy should remind McConnell’s right-wing critics that, like him or not, he’s the most valuable politician Republicans have.