The Hypocrisy of Senator Mitch McConnell

Today President Trump nominated Judge Amy Coney Barrett to replace Supreme Court Justice Ruth Bader Ginsburg who passed away last week. The Constitution gives the president the right to nominate and appoint Supreme Court Justices with the advice and consent of the Senate. What makes this nomination unusual is the fact that the presidential election is only 38 days away. There has never been a nomination made for a vacancy to the Supreme Court this close to a presidential election. Senate majority leader Mitch McConnell (R-Kentucky) has said in recent days that President Trump’s nominee will receive a vote on the floor of the United States Senate. All indications are that the confirmation hearings will begin the week of October 12, and a final vote by the full Senate should take place by the end of the month, a few short days before the election. The Senate has a constitutional duty to fulfill this function, so what is the problem?  

​Blocking President Obama’s Supreme Court Nominee: Within an hour of the death of Supreme Court Justice Antonin Scalia on February 13, 2016, Senate Majority leader Mitch McConnell said that the Senate should not confirm a replacement until after the 2016 presidential election. At the time he said “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,”  (https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248). 

​On March 16, 2016 President Obama nominated U.S. Court of Appeals Judge Merrick Garland to fill the vacant seat on the Supreme Court. Soon after, Senator McConnell stated “It is a president’s constitutional right to nominate a Supreme Court Justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent.” (https://www.wbur.org/npr/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person).  Senator McConnell further stated “The America people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that may be”.

Then on March 23, 2016, after meeting in a closed-door session with Senate Republicans, Senator McConnell said “I believe the overwhelming view of the Republican conference in the Senate is that this nomination should not be filled; this vacancy should not be filled by this lame duck president.” That same day the Chairman of the Senate Judiciary Committee, Charles Grassley(R-Iowa), said that his panel would not move forward with any consideration of President Obama’s nominee.”

Senators McConnell and Grassley coauthored an op-ed in the Washington Post around that time. In it they stated “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”  Another argument used by Senator McConnell in 2016 to justify blocking the nomination of Judge Garland was, “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.” The problem is, no such tradition exists, (https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/).

What Does History Tell Us: According to the NYU Law Review, in the post- Civil War era there have been nine Supreme Court vacancies in place during presidential election years. For eight of those vacancies the nomination process began during the election year. In all of these cases the president was able to fill the vacancy during the election year. ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2752287).

Recently Senator McConnell has come up with a different precedent to justify his treatment of Judge Garland. According to the senator, since the 1880’s no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential year. So, the Senate’s new precedent states that if the president’s party controls the Senate during an election year, the president gets to fill a Supreme Court vacancy. But when the opposite party controls the Senate during an election year, the president’s nominee cannot be confirmed by the Senate. There is no basis in the Constitution or in precedent to back up Senator McConnell’s latest claim. What good is the Constitution, Senator McConnell, if you get to make up the rules as you go along?

​Senator McConnell Shows His True Colors​: It should be no surprise that Senator Mitch McConnell is hyper-partisan and places party loyalty above all else. During President Obama’s first term, Senator McConnell stated that his prime motive was to deny the president a 2nd term. So much for doing what’s best for the country! During a speech in 2016 the senator stated, “One of my proudest moments was when I looked Barack Obama in the eye and I said, Mr. President, you will not fill the Supreme Court vacancy.”
Last year Senator McConnell used his blocking of the Garland confirmation to raise campaign funds. In campaign literature he wrote, “If there’s a vacancy on the Supreme Court in 2020, I will proudly confirm President Trump’s nominee. Sure the left and their allies in the media will go crazy. The Democrats will raise millions to defeat me. That won’t stop us from putting another conservative Justice on the Supreme Court” (https://www.usatoday.com/story/news/politics/2019/05/29/mcconnell-blocked-obama-supreme-court-choice-wouldnt-stop-trump/1268883001/). 

​President Trump Nominates Judge Amy Coney Barrett to Fill Supreme Court Vacancy: President Trump announced the nomination today, just 38 days before the presidential election on November 3, 2020. This is the closest Supreme Court vacancy to a presidential election since 1864. But at that time President Lincoln would not put forth a nominee to fill the vacancy until after the election. There is no precedent for any Supreme Court nominee being confirmed between July and election day. There may simply not be enough time to properly vet a nominee to a lifetime appointment before the election, as the Republicans are attempting to do. Since 1975 it has taken an average of sixty-seven days for a nominee to receive a confirmation vote in the Senate. But Senator McConnell has already stated that the president’s nominee will receive a vote on the floor of the Senate, and he is sticking by the precedent that he created to justify blocking Judge Garland’s confirmation. Since the Senate is controlled by the president’s party, the president is perfectly justified in nominating a Supreme Court Justice during a presidential election year, and the Senate is perfectly justified in doing everything possible to get the nominee confirmed. Yes, Senator McConnell, the Constitution is blind regarding political party on this issue, too bad you can’t be.  According to the latest news, confirmation hearings for Judge Amy Coney Barrett will begin in the Senate on October 12, 2020 and a full Senate vote will take place by the end of October, a few short days from the election.

Mitch McConnel is not alone in his hypocrisy. All but two Republican Senators have pledged to see the confirmation process through to the end. Senator Lindsey Graham (R-South Carolina), the Chairman of the Judiciary Committee, is front and center when it comes to hypocrisy. In 2016 following the death of Justice Scalia, Senator Graham stated “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, let’s let the next president, whoever it might be, make the nomination.” During the 2018 Judge Kavanaugh confirmation hearings, Senator Graham stated “If an opening comes in the last year of President Trump’s term, if the primary process is started, we will wait to the next election.” With the prospect of confirming a conservative justice to the bench, Senator Graham has done an about face. He is leading the charge to make sure that Judge Barrett gets through the confirmation process and has a vote by the full Senate. Senator Graham is in a tough reelection campaign, so we shouldn’t be surprised that politics trumps principles.

Democrat Reprisals: As you would expect, Democrats in the Senate and across the country are screaming foul and calling out the Republicans for their blatant hypocrisy. But scream as they might, there’s not a lot the Democrats can do to stop the confirmation process. The president has the right under the Constriction to put forth a nominee, and the Senate has the right to consider the nomination and consent or not. It only takes a simple majority vote in the Senate to approve the appointment, and it appears as if Leader McConnell has the votes.
Already the Democrats are threatening reprisals if and when they take back control of the Senate. Here are a few:

• “Stacking the Bench” by increasing the number of Justices on the Supreme Court, which they have the legal right to do.   
• Make Washington DC and Puerto Rico states, thereby creating four more senators from these left leaning areas.
• Pass laws to restrict the Supreme Court from reviewing certain cases.
• Pass a law to require six or seven justices to vote in favor of decisions to strike down an existing federal or state law.

But all of these moves would further the partisan divide in Congress and polarize the country. The Democrats should take the high road and let the process play out. Any attempts to threaten Senate rule changes or other retaliatory moves, will be used against the Democrats in an already contentious presidential election race. There is a lot of outrage amongst Democrat loyalists. Campaign money is flowing into Democrat coffers, and the Republicans just might pay a price at the polls for their duplicity. Let that be enough.

A Win for the President: Getting a third conservative justice appointed to the Supreme Court will be a huge victory for President Trump. During a Fox News Radio interview last Thursday, the president indicated that he would agree with a Supreme Court ruling that Biden won the election. But short of a court decision, the vote would amount to a “horror show” because of fraudulent ballots, according to the president. He really believes that the election results will be contested, and he is doing everything within his power to assure that outcome. That is why the president needs nine Justices on the Supreme Court prior to the election. In Donald Trump’s world a Supreme Court Justice that he appoints is beholden to him. Much like the Attorney General and the FBI Director, who the president expects to do his bidding. The idea of an independent Justice Department doesn’t enter into his calculus, and neither does an independent judiciary. Donald Trump believes that if the election is contested and goes to the Supreme Court, that he will win due to the court’s ideologic makeup or out of loyalty to him. If the Supreme Court Justices actually rule on cases based on their political affiliations, then this country is really in deep trouble.

Judge Amy Coney Barrett is by all accounts a very conservative judge. But my main issue is not with the ideologic makeup of the Supreme Court. Call me naïve, but I have faith that the Justices rule on their honest interpretation of the Constitution and not on political motivations. I have an issue with Senator Mitch McConnell’s corruption of the Senate’s process for confirming Supreme Court Justices. I fear for what it will do to the proceedings of the Senate going forward. The Senate is a separate branch of government from the Executive branch, not a rubber stamp for it. If the Senate acts in lockstep with the president, where are the checks and balances, and who is protecting the country from Executive overreach? To act one way when the president is a Democrat and another way when the president is Republican, puts party over country and is just plain wrong.

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Armchair American
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