James P. Freeman: McConnell the central figure in reshaping the Supreme Court
Perched high above the fray, Senate Majority Leader Mitch McConnell (R.Ky.) has comported himself in going about the people’s business like that of the reserved Barred Owl: observing keenly, roosting quietly, and acting decisively. Such attributes have allowed McConnell — a tactical and strategic master of parliamentary maneuvers — to calmly consolidate power, particularly with regard to shaping Supreme Court appointments.
President Trump may have nominated Judge Brett Kavanaugh to the Supreme Court, but Kavanaugh’s likely confirmation to the court this year will be because of something McConnell understood almost five years ago.
In November 2013, at the urging of then-Majority Leader Harry Reid (D.-Nev.), Democrats — voting along party lines — changed the rules of the Senate. This became known as “the nuclear option.” As The Atlantic then noted, under the new rules, “presidential nominees for all executive-branch position — including the Cabinet — and judicial vacancies below the Supreme Court could advance with a simple majority of 51 votes.”
(The rules for legislation were untouched, but the nuclear fallout was that the 60-vote threshold for overcoming a filibuster on nearly all nominations was dead; the net effect is that the minority party is nearly powerless to stop these nominations.)
Furious, then-Minority Leader McConnell issued a stern and prescient warning to Democrats on the Senate floor: “You’ll regret this, and you may regret this a lot sooner than you think.”
McConnell could not have imagined that members of his party — and, by extension, conservatives — would soon be the beneficiaries of his prophetic words.
After the 2014 mid-term elections, Republicans regained control of the Senate. The significance of this became apparent upon the death of Supreme Court Justice Antonin Scalia, in February 2016. An intellectual heavyweight, he was, by all accounts, the staunchest conservative on the court. And Republicans rightly feared that President Obama would not replace Scalia with another conservative. They were correct.
Obama nominated Appeals Court Judge Merrick B. Garland, a centrist, to the Supreme Court in March 2016. He was indeed no Scalia. The Washington Post wrote that Obama figured that “the highly regarded jurist might blunt some of the expected political attacks and ultimately embarrass Senate Republicans into dropping their fierce opposition to the nomination.” Obama badly miscalculated Republican judicial motivations.
In a stroke of bold politics, McConnell imposed a blockade of the Garland nomination, letting it languish — without a hearing or a vote — until after the 2016 presidential elections. The action, or inaction, denied Obama the chance to replace Scalia. If anything, it proved a successful delaying tactic.
McConnell could hardly have foreseen a Trump (Republican) presidency but he knew that even if Republicans fell back into minority status in the Senate and Democrats retained the presidency after the elections, he could engineer a filibuster of Garland or another Supreme Court nominee. (Recall that the nuclear option did not apply to nominees of the high court.)
But Trump won, and Republicans still controlled the Senate.
Fulfilling a promise to nominate conservative justices, the new president nominated Court of Appeals Judge Neil Gorsuch in early 2017. Expressing their displeasure, Democrats in the Senate threatened to filibuster the conservative jurist, an option still available to them.
While Reid went nuclear in 2013, McConnell went thermonuclear in 2017.
Republicans in the Senate changed the rules whereby the nuclear option would also apply to Supreme Court nominees, not just lower-court nominees. (Democrats had threatened a similar change before they unexpectedly lost the 2016 election). Last month, The New York Times reminded its readers that “simple majority approval for considering and confirming Supreme Court nominations is the standing policy of the Senate now.”
While both parties have tinkered with procedural changes in the Senate in the short run, Republicans are using it to their advantage for the long run.
The Boston Globe recently reported that Trump (guided by Republicans) has already appointed 44 judges since taking office — “including more appellate judges than any president in American history at this point in his tenure.” He has another 88 nominees currently pending before the Senate. “If,” The Globe asserts, “Trump is able to fill just the current vacancies alone, he will be responsible for installing more than one-fifth of the sitting judges in the United States.”
Barring a political catastrophe for them this November, McConnell and the Republicans will likely retain power in the Senate. Consequently, they will continue controlling Supreme Court nominations and other federal court nominations. At least for two more years.
The retirement of Justice Anthony M. Kennedy means that there are no longer any justices serving on the Supreme Court who were nominated by President Reagan. However, should just one more justice leave the high court before the 2020 presidential elections, Trump’s changes to the composition of the court would rival those made in the Reagan era.
History will show that McConnell also played a critical role in reshaping the court for generations to come.
James P. Freeman, a former banker, is a New England-based essayist. This piece first ran in Inside Sources.
Chris Powell: Supreme Court is now almost entirely political
The contention over Supreme Court nominations like President Trump's of Judge Neil Gorsuch and President Obama's of Judge Merrick Garland has become so bitter because decades ago political liberals began using the court as a super-legislature and political conservatives could not resist the urge to follow suit. Maybe now the country can acknowledge at last that the Supreme Court is no longer a court at all -- that, as newspaper columnist Finley Peter Dunne's fictional Irish bartender, Martin J. Dooley, opined more than a century ago, "The Supreme Court follows the election returns."
If liberals are in power, the court somehow discovers that the Constitution requires enactment of every liberal nostrum, and if conservatives are in power, the court requires every important legal question to be answered favorably to conservatives. Connecticut's two U.S. senators, Richard Blumenthal and Chris Murphy, both liberal Democrats, confirmed as much this week upon Gorsuch's nomination, both expressing skepticism if not quite outright opposition, though not one question yet had been put to the nominee. It is enough that Gorsuch is considered a conservative.
"I want a mainstream judge, not an ideological partisan," Murphy said, and Blumenthal echoed him, as if they too aren’t ideological partisans and wouldn’t settle for a nominee who was a flaming liberal like themselves. Similarly, of course, when President Obama, a liberal Democrat, nominated liberal judges, conservative Republicans bleated about wanting "mainstream" nominees even as they would have been delighted with flaming conservative nominees.
Democratic senators are incensed about Gorsuch's nomination because they feel that the Republican majority in the Senate stole the current vacancy on the court from President Obama, refusing to consider Garland and maintaining the vacancy for most of a year until the presidential election changed control of the White House.
This was indeed crude politics, but appointments to high federal office are actually the Senate's own; the president's power is limited to nomination. Besides, Democratic senators this week played their own crude politics, refusing to attend committee meetings so they could stall some of the president’s Cabinet nominees. As for the legal and political issue believed to underlie the struggle over Gorsuch's nomination -- abortion -- it was the political left that wanted to constitutionalize it with the Supreme Court's decision in Roe v. Wade, in 1973, rather than leave the issue as a legislative prerogative of the states.
Since the country remains divided on abortion, no one should be surprised if the political reversal in Washington prompts attempts to de-constitutionalize the issue, especially since even some legal scholars who favor abortion rights acknowledge that the Roe decision was bad law.
But in the ideological hatefulness that dominates politics today, anyone who tries to make fair distinctions risks getting lynched by one side or the other.
xxx
Not everything in Connecticut is crumbling. Bradley International Airport, in Windsor Locks, is steadily improving, and the other day Gov Dan. Malloy and the Connecticut Airport Authority announced that another airline will join Bradley's stable. The airline, Spirit, a no-frills carrier, will fly from Bradley to Orlando, Fla., once a day starting in April, and, starting in June, once a day to Fort Lauderdale, Fla. Spirit also will offer spring and summer flights from Bradley to Myrtle Beach, S.C., four days a week starting in April. The airport authority will extend $400,000 to the airline in promotional expenses and fee waivers, not a big bribe. Now all state government has to do is figure out how to get Spirit's Connecticut passengers to come back from down south.
Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.