I’m talking of course about Senate majority leader Mitch McConnell and the effort he will lead to confirm a replacement for exiting Supreme Court Justice Anthony Kennedy, the Reagan appointee who has long been the swing vote on the high court.
Kennedy’s impending retirement, announced Wednesday, will create the first Supreme Court vacancy since the death of Antonin Scalia, in February 2016, which set the stage for one of the most brazen political heists in memory. Senate Republicans purloined a Supreme Court pick from then-president Barack Obama by refusing to hold a hearing, let alone a vote, on Merrick Garland, the eminently qualified judicial moderate whom Obama, in a gesture of conciliation, had put forward to replace Scalia, the long-time anchor of the court’s conservative bloc.
Aping Shakespeare’s Richard III, who “clothed [his] naked villainy with odd old ends stol’n out of holy writ,” McConnell and the Senate Republican caucus scrambled for any tattered rag they could find to disguise their political hijacking.
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” McConnell said.
To that end, the seat should not be filled in an election year, he declared; rather, the next president should nominate a Scalia successor, with the advice and consent of senators sitting at that time. To justify that position, McConnell & Co. seized upon a speech Joe Biden had given in late June of 1992, saying that if a Supreme Court vacancy occurred between then and Election Day, President George H.W. Bush should wait until after the election to nominate a new justice. Given that Biden was merely urging that “President Bush . . . should not name an nominee until after the November election is completed,” that was never a plausible political precedent for the GOP’s hostage-taking.
But having established such a standard, any honest, principled leader would now be honor-bound to insist that Kennedy’s seat go unfilled until next year, right? After all, voters surely deserve a say expressed through their various congressional-campaign votes. A Democratic takeover of the House would signal discontent with President Trump’s direction, while the makeup of the 2019 US Senate will surely have a bearing on the type of justice who can be confirmed.
That, however, would be expecting honor among political thieves. McConnell has already said he wants the Senate to vote on whomever Trump nominates . . . before the fall elections. Abandoning the McConnell Doctrine now that it’s politically inconvenient is every bit as cynical as conjuring that doctrine out of nearly empty air. And it will touch off an especially bitter battle in America’s already ammoniacal atmosphere.
There is, however, one way Trump could preclude that. He could nominate . . . Merrick Garland. Garland, after all, is precisely the kind of justice Senate Republicans claimed they hoped Obama would nominate for the court — until Obama actually did so. Why, back in 2010, no less a conservative luminary than Senator Orrin Hatch of Utah said that Garland would be a “consensus nominee” who would unquestionably win confirmation to the high court.
By nominating him, Trump could right a historical wrong and forestall a bitter battle. But doing so would require grace, courage, and a desire to unite, rather than divide, the nation.
Which is to say, don’t look for it to happen. Instead, brace yourself as US politics takes an ever-more-acrimonious turn — one that promises to further erode the legitimacy of the US Supreme Court.