Anyone who thought Mitch McConnell was going to give up a prized Supreme Court seat purely for the sake of appearances hasn’t been paying attention.
With four words and a proud smile, the Senate majority leader this week confirmed what those who have watched him closely have long understood to be true: If a vacancy on the high court occurs in the election year of 2020, the Republican majority that McConnell leads would vote to confirm President Donald Trump’s nominee. “Oh, we’d fill it,” McConnell said in response to a what-if question about the Supreme Court during an appearance in his home state of Kentucky.
McConnell’s assertion is likely to come as worrisome, if unsurprising, news to liberals who fear for the health of Ruth Bader Ginsburg, the 86-year-old justice who has no plans to retire but who has endured multiple falls and cancer scares in the past decade. It also serves as a reminder to Democrats musing about eliminating the legislative filibuster that the same option could be open to Republicans, and the Senate leader they’re hoping to topple is never shy about making full use of the powers of his position—even those he has previously dismissed.
It was the first time McConnell had been that explicit about his intentions regarding a 2020 Supreme Court vacancy, and his Democratic counterpart in the Senate, Minority Leader Chuck Schumer, immediately denounced him as a “hypocrite.” After all, McConnell had famously—or infamously, to Democrats—blocked former President Barack Obama’s pick of Judge Merrick Garland to replace the late Justice Antonin Scalia in early 2016 on the grounds that “the American people should have a voice” in the selection of the next justice. Why, a Democrat might wonder, shouldn’t that standard hold in the final year of a Republican president’s term?
Yet even at the time, McConnell claimed a narrow precedent for his maneuver that he knew would not necessarily constrain him in this exact scenario. As he argued in interviews and floor speeches, it had been more than a century since a Senate had, in a presidential-election year, confirmed the Supreme Court nominee of a president of the opposite party. To bolster his credibility, McConnell sourced his entirely invented new precedent to Vice President Joe Biden, who as chairman of the Judiciary Committee in 1992 had suggested that the Democratic-controlled Senate not consider a campaign-year nominee from President George H. W. Bush. Biden’s call ended up being moot, as Bush, who was then running for a second term, did not get another vacancy on the high court.
As the McConnell spokesman David Popp pointed out on Twitter, 2020 won’t be the same as 2016. The Senate and the White House will be controlled by the same party, and the Biden—er, McConnell Rule won’t apply. For the situations to have been an apples-to-apples comparison, Democrats would have had to recapture the Senate majority in 2018. And if they had, McConnell would be in no position to decide whether or not to confirm a Supreme Court nominee.
None of this is an accident. Unlike Trump, McConnell does not make off-the-cuff comments. His near-term goal in blocking Garland was to save Scalia’s seat—and with it, a narrow conservative majority on the Supreme Court—for a Republican president to fill. It was a risky gamble: Had Hillary Clinton won the presidency, she might well have nominated a younger, more liberal justice than Garland and moved the Court further to the left for a longer period of time.
McConnell’s longer-term goal—indeed, his bid for a lasting legacy as Senate leader—is no secret. His aim is to install as many conservatives in lifetime federal judgeships, and in particular on the Supreme Court, as possible. He is well on his way to success in this area, having prioritized judicial nominations over legislation during Trump’s first two years in office. Key to the effort has been McConnell’s embrace of shrewd, arguably ruthless tactics. After blocking Garland in 2016, he didn’t bat an eye in swiftly deciding to nuke the Senate’s 60-vote threshold for judicial nominations in the face of a Democratic filibuster of Judge Neil Gorsuch a year later. In 2018, McConnell steered Brett Kavanaugh to confirmation despite multiple accusations of sexual misconduct against the appellate judge; the majority leader held the vote weeks before a midterm election that could have handed control of the Senate to the Democrats.
As he runs for reelection to a seventh Senate term in Kentucky, McConnell is, to quote Politico, embracing his dark side—relishing his reputation as a “grim reaper” to the left and a master strategist to the right. During his appearance on Tuesday, he explained his preference for confirming judges over debating legislation in the Senate. “Everything else changes,” McConnell observed. New laws, such as Trump’s signature tax bill in 2017, can be rolled back or repealed as soon as the other party regains power. “What can’t be undone,” he continued, “is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of a judge is to follow the law. So that’s the most important thing we’ve done for the country, which cannot be undone.”
Democrats, then, have much to fear if Ginsburg or Justice Stephen Breyer, who turns 81 in August, were to leave the Supreme Court in the next year. But they have still more to fear from McConnell if they cannot defeat either him or Trump in 2020. Already the Democratic presidential-primary debate has veered from policy to process, with candidates backing the elimination of the legislative filibuster as a means of enacting far-reaching proposals such as Medicare for All or a Green New Deal with just 51 votes instead of 60. So, too, have candidates opined on the idea of packing the Supreme Court with more than nine justices to overcome a conservative majority that some liberals consider illegitimate.
For progressives, the goal in raising these ideas now is in part to give them time to become mainstream by 2021; by then progressives hope to have the power—and the political will—to implement them. But once an idea becomes mainstream, it’s up for grabs for both parties. When McConnell nuked the filibuster for Supreme Court nominations, he acted only after Democrats, in 2013, scrapped the maneuver for all other judicial and executive-branch nominations. It’s easy to envision a scenario whereby if Trump wins reelection, McConnell justifies the elimination of the filibuster for legislation—which the president has repeatedly pushed for—by pointing to the Democrats and saying, “They would have done it anyway.”
It’s a risk Democrats seem willing to take—it’s not like the 2020 election won’t have a lot riding on it already. By that time, Mitch McConnell might have put yet another Supreme Court justice on the bench—his third in four years. And if and when he deploys whatever power he has to advance the conservative cause, no one should be surprised.
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