McConnell's Judicial Gamesmanship Clears Path for Trump Second Term
Mitch McConnell has announced he will step down from his leadership of Senate Republicans at the end of the year. Democratic Majority Leader Chuck Schumer wished McConnell the very best. I do not. Instead, I scorn him for undermining the Senate's role in American democracy.
On Feb. 13, 2021, then-Senate Majority Leader McConnell declared to his colleagues that insurrectionists attacked the U.S. Capitol on Jan. 6 “because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he'd lost an election.” McConnell went on to say, “There is no question that President Trump is practically and morally responsible for provoking the events of that day.”
And yet, because of how McConnell re-engineered the process for confirming federal judges, Trump may never suffer any consequences for his actions. Judges ushered through the Senate confirmation process by McConnell may hand the November election to Trump.
Let me explain.
Three members of the Supreme Court — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — owe their seats to how McConnell gamed their confirmations. Gorsuch took over the seat on the court left vacant by the 2016 death of Justice Antonin Scalia. An hour after Scalia's death was announced, McConnell announced, “This vacancy should not be filled until we have a new president.” A nomination that, under the Constitution, belonged to President Barack Obama, went nowhere in the 11 months remaining in his term. Obama's nominee then-Chief Judge Merrick Garland did not even get a hearing.
In his 2016 memoir, McConnell wrote, “The Senate is the only legislative body on earth where a majority is not enough — most things require sixty votes to pass.” McConnell had the 60-vote requirement for Supreme Court justices eliminated in the first months of Trump's term so that Trump's nominee Gorsuch could be confirmed by a majority 54-45 vote.
McConnell's hypocrisy was shown when Ruth Bader Ginsburg died with only four months left in Trump's term. He rammed through Amy Coney Barrett's confirmation only one month after her nomination. In his memoir he'd called the Senate “a place where nothing is decided without a good dose of deliberation and debate.”
Without the abolition of the 60-vote requirement, there's no way Brett Kavanaugh would be on the Supreme Court. Accused of lying under oath and of sexual assault, Kavanaugh was confirmed by a 50-48 vote.
By all rights, then, the seat held by Gorsuch should have been Merrick Garland's, the seat held by Kavanaugh should have been held by someone who could have garnered 60 confirming votes and the one held by Barrett by someone nominated by Joe Biden.
How much difference would that have made?
The Supreme Court has just rejected a major threat to another Trump term. Judges in Colorado ruled that Trump should be taken off the state's ballot because of the 14th Amendment's bar on candidates who have “engaged in insurrection or rebellion” against the United States or “given aid or comfort to its enemies.” Upon review, five members of the U.S. Supreme Court, including Gorsuch and Kavanaugh, held that a statute must be passed by Congress for such a disqualification to take effect. The Supreme Court ruled less than three months after appeal and less than a month after oral argument.
While the court moved at lightning speed in a case that would keep Trump on the ballot, the Supreme Court is moving molasses-slow in the Washington, D.C. case where Trump has been indicted on a charge of a “criminal scheme” to obstruct Joe Biden from taking office. Trump claims absolute immunity for any actions he took as president. His attorney has argued that unless convicted in a Senate trial first, a president would not face criminal charges in the courts even for ordering Navy SEALs to assassinate a political rival. There is little chance Trump will win this argument. Trump's appeal was in December, and the oral hearing is not until April. Who knows when the decision will come and the trial can proceed?
Current polls show Donald Trump leading incumbent President Biden in the presidential race. However, an NBC poll released in February shows Biden pulling into the lead if Trump is convicted of a felony before the election. The Supreme Court's procrastination may mean the D.C. case is not decided by then. Trump's strategy is to delay. If he does win the presidency, he can have the Justice Department drop all federal charges.
It sure appears as though the current Supreme Court with its three Trump appointees moves quickly when it will help Trump and slowly when that suits him.
McConnell's influence has reached beyond nominations to the Supreme Court. Of 678 authorized federal district court judgeships, McConnell ensured the confirmation of 179 Trump nominees. Confirmed by a lame duck session of the Senate after Trump was defeated for reelection in November 2020, Judge Aileen Cannon was assigned the case where Trump was indicted on a charge of hiding top secret documents at his Mar-a-Lago residence. Federal prosecutors want the case to begin in July. Trump's lawyers argue that it should be postponed until next year. Cannon thus far has shown little urgency in moving forward.
In 2021, McConnell said Trump “kept repeating election lies and praising the criminals” even “with police officers bleeding and broken glass covering Capitol floors.” And yet he has just endorsed him for a new term in 2024. Why not? It's his machinations and hypocrisy that might put Trump back in the White House.
Alas, what a legacy.
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