Why Mitch McConnell Outmaneuvers Democrats on the Supreme Court

By Jeffrey Toobin, The New Yorker

03 June 19

he boundless cynicism of Mitch McConnell is again on display. The Kentucky Republican, who is the Senate Majority Leader, told a home-state audience that, if there is a vacancy on the Supreme Court in 2020, he will make sure that President Trump’s nominee receives a confirmation vote. This, of course, conflicts with McConnell’s view on the election-year nomination of Merrick Garland, in 2016. After the death of Justice Antonin Scalia, on February 13, 2016, McConnell announced that he would refuse to allow a vote on President Obama’s nominee, and thus would keep the seat open for the next President to fill. McConnell has lately made a halfhearted attempt to distinguish the two situations; he said that Supreme Court seats should be kept open in election years when the Senate and the Presidency are controlled by different parties. (Needless to say, he did not raise this purported distinction in 2016.) But the main reason that McConnell might push through a Republican nominee to the Court while blocking a Democratic choice is simple: because he can.

There’s another, less obvious reason that McConnell can game the Supreme Court confirmation process with impunity. The Republican Party has been far more invested in the future of the Supreme Court, and of the judiciary generally, than the Democratic Party has. Judicial appointments, especially to the Supreme Court, are a central pillar of the Republican agenda, and Republican voters will forgive any number of other transgressions if the Party delivers on the courts.

Donald Trump understood this. That’s why, during the 2016 campaign, he released a short list of possible nominees to the Court. The list was largely compiled by Leonard Leo, the executive vice-president of the Federalist Society, and the names on it demonstrated to the Republican base that Trump was serious about following its agenda—starting with overruling Roe v. Wade. Trump’s nominations of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and of dozens of other conservatives to the lower courts, have been crucial to the President’s preservation of his stratospheric level of support from that base. Conservatives forgive Trump his louche personal life and his casual dishonesty because they know that they are getting the judges and the Justices they want.

Democrats are different. Consider what happened after McConnell blocked the Garland nomination. After a few days of perfunctory outrage, most Democratic politicians dropped the issue. Neither President Obama nor Hillary Clinton, in their speeches before the Democratic National Convention, in July, 2016, even mentioned Garland—or the Supreme Court. Its future was apparently something that neither of them wanted to discuss, or thought that their party, or the nation, wanted to hear about.

Four years later, this pattern is recurring. Consider, for example, the Web sites of three leading contenders for the Democratic Presidential nomination: Joe Biden, Bernie Sanders, and Elizabeth Warren. Each site has thousands of words outlining the candidates’ positions on the issues—and none of them mentions Supreme Court nominations, much less nominations for lower-court judges. These omissions are especially striking in Biden’s case, because he served for decades on the Senate Judiciary Committee, including several years as the chair. He voted on more than a dozen Supreme Court confirmations (including, of course, that of Clarence Thomas) and, as Vice-President, he helped Sonia Sotomayor and Elena Kagan win approval in the Senate. Likewise, since Warren was a law professor before she ran for office, she might be expected to focus on the significance of the Court. But, for the most part, Democrats barely mention it.

It’s difficult to pinpoint why Republicans are so much more motivated by the Supreme Court than Democrats are. Complacency could be part of the reason. Despite a preponderance of Republicans on the Court for the past couple of generations, the Justices have expanded gay rights, including the right to marriage, and preserved abortion rights, by reaffirming Roe. But, thanks largely to McConnell, and, of course, to Trump, those days are likely over. Trump rallied his supporters by promising to appoint Justices who will vote to overturn Roe, and the day of that vote may soon be upon us. By the time Democrats wake up to the importance of the Court, it may be too late.