Mitch McConnell has massively damaged American democracy with calm, chess-like moves | Gary Gerstle

TThe Jan. 6 commission has now revealed how far Donald Trump was willing to go to prevent the peaceful and lawful transfer of power from his presidency to that of Joe Biden. Yet his deadly earnest attempt to rock American democracy also had something lame, a reflection of Trump’s own impulsive nature and his reliance on a band of schemers—including Rudy Giuliani, Mike Flynn, Sidney Powell, Roger Stone, and John Eastman. of limited power. Unsurprisingly, Trump’s coup failed.

However, another brutal GOP move has succeeded – this one was designed by Senate minority leader Mitch McConnell, whose chess-like skills of political strategy put Trump’s powerful but limited game of blunder and bullying to shame. The act I’m referring to is McConnell’s theft of Barack Obama’s 2016 Supreme Court nomination, a radical act that has faded somewhat from public consciousness, though it proved crucial to forming a right-wing Supreme Court willing to overthrow Roe v Wade. and destabilize America politically and American democracy in the process.

McConnell is widely regarded as a cynic on politics, more interested in preserving and holding on to power than advancing any particular agenda. This is true to some extent. But it is equally true that for decades McConnell believed that the federal government had become too big and too strong, that power should be returned to private enterprise on the one hand, and individual states on the other, and that the Washington legislature process could not be stopped. trusted to achieve those goals. Hence the crucial role of the federal courts: The federal judiciary, if populated enough by conservative lawyers, could limit and dismantle the power of the federal government in ways Congress would never do. It was fine, in McConnell’s view, that Congress was crippled and ineffective on most domestic issues, as long as the GOP, when in power, piled the federal judiciary and Supreme Court with conservative judges and judges. So, during the Trump presidency, McConnell pushed 175 district court appointments and 54 appellate court appointments through the congressional confirmation process, far more than what Obama had accomplished during the second term of his presidency.

The Supreme Court was, of course, the greatest prize of all. The GOP had failed for 30 years to arrange a court to its liking, in large part, it argued, because too many of its appointees — Sandra Day O’Connor, David Souter, Anthony Kennedy and even John Roberts — are “rogue” had become. core themes: gay rights, same-sex marriage, affirmative action, Obamacare and especially abortion. McConnell feared the GOP would fail again, this time under his oversight as majority leader. Hence his willingness to steal an appointment that belonged to Obama by historical practice and precedent.

The story of McConnell’s theft begins in February 2016, when Associate Justice Antonin Scalia, the lion of justice, died suddenly and unexpectedly. Obama had just entered the final year of his presidency, and McConnell was entering his second year as Senate majority leader. McConnell immediately stated that he would not hold hearings on a new Supreme Court judge, no matter who Obama nominated. McConnell’s apparent justification: It was inappropriate, he declared, for a president to exercise such profound influence on America’s political future upon his departure from office. Let the next president, who will be elected in November 2016, decide who will be the candidate. That way forward, McConnell argued, would be a way for “the people” to shape the future of the Supreme Court through their election as president.

Obama nominated a centrist (and prominent) lawyer, Merrick Garland, in hopes that it would soften the opposition of McConnell and the GOP. McConnell wouldn’t budge. He acted as if no candidate had been nominated, allowing both Garland and Obama to spin in the wind for eight long months. We know the rest of the story: Trump won in November and nominated Neil Gorsuch to fill Scalia’s seat. Gorsuch was an arch-conservative lawyer who was vetted by the Federalist Society. Knowing he would not be able to land the 60 votes needed to close the debate on the nominee, McConnell blew up the filibuster requirement for Supreme Court justices. Gorsuch was then confirmed (54-45) on the Senate floor.

Technically, McConnell hadn’t broken any laws. The Senate has the power, by simple majority, to remove the filibuster from virtually any issue at any time. With regard to Supreme Court appointments, the constitution simply states that the president has the power to appoint judges and that the advice and consent of the Senate is required for confirmation. Still, McConnell’s refusal to allow any action against Garland broke with 150 years of senatorial precedent and practice. The Senate had rejected nominees in the past, but only after debate and vote. Some who were told they had little chance of winning such a vote had voluntarily withdrawn their names. Some had seen their case postponed for a few months. But the last time a candidate had to face Garland’s fate—indefinitely to purgatory—was 1866. And that old case had a plausible justification that the Garland case didn’t: The nomination came from a president—Andrew Johnson – up for impeachment and possible resignation from office.

McConnell’s move was a calculated gamble. In early 2016, he didn’t know who or how strong the Republican candidate would be. But he viewed Hillary Clinton, the likely Democratic nominee, as vulnerable and undefeatable. And he expected his opposition to Obama to a Supreme Court nomination would fuel the GOP base. The stakes of the battle made the considerable risk worth it. McConnell distrusted Chief Justice Roberts for his critical role in enforcing Obama’s Affordable Care Act – another example, in the eyes of the majority leader, of a GOP-nominated justice being “rogue”. An appointment by Garland would have bolstered the court’s centrism, which is where Roberts wanted his court’s power to lie. McConnell wanted a court that would resist that drift, even if it meant breaking long-standing senatorial precedent. The end—a “true” conservative court—justified the means.

Imagine if in 2016 McConnell followed the precedent, holding hearings and a vote on Garland. The moderate Garland may well have been approved and could become Scalia’s replacement. Let’s assume, for the sake of argument, that the next two appointments went as they were: Brett Kavanaugh to replace the retiring Anthony Kennedy in 2019 and Amy Coney Barrett to replace Ruth Bader Ginsburg when the latter died in 2020. Had this scenario prevailed, the court would have entered its 2021-2022 term with three progressives (Stephen Breyer, Elena Kagan and Sonia Sotomayor), one moderate (Garland) and five conservatives (Clarence Thomas, Samuel Alito, Roberts, Kavanaugh and Barrett).

This hypothetical court probably refused to quash Roe v Wade. Two of the votes Samuel Alito needed to secure his majority in the 2022 case against Roe (Dobbs v Jackson Women’s Health Organization) were weak: Roberts and Kavanaugh. Roberts, in his contemporaneous opinion, surprisingly admitted that he thought it was wrong to use Dobbs to overthrow Roe, even though he voted for it. Kavanaugh, meanwhile, mixed his own contemporaneous opinion with the fear of someone deeply troubled by the positive vote for a Roe reversal he also cast.

What if Garland was on this field instead of Gorsuch? Roberts, who still commands this court, may have forged a coalition to keep Roe. He could have drawn a conflicted Kavanaugh to his side, and he could have struck a deal with the court’s progressives (and probably Garland too) that was similar in spirit to Sandra Day O’Connor’s in Planned Parenthood v Casey (1992): Jurisprudentially messy but workable as a compromise between America’s warring tribes. If Garland sat on this court, in other words, women in America today would still have a constitutionally protected right to reproductive freedom.

McConnell could not have foreseen in 2016 the specific way a majority of judges would coalesce in 2022 to overthrow Roe. But his actions then were intended to lay the foundation for these kinds of results. He decided long ago that he would let no principle stand in the way of his pursuit of a right-wing court. For example, in October 2020, he did not hesitate to give up the arguments he made in the Garland case to overturn Senate confirmation Amy Comey Barrett, even though Trump was much closer to the end of his presidential term than Obama was to. his in 2016. The goal – a right-wing court – justified the means.

McConnell’s machinations did not break any laws. However, his 2016 Supreme Court theft turned a century and a half of accepted senatorial practice on its head. The price for the country has been high: erosion of the legitimacy of the court, growing cynicism about politics in Washington, and a growing belief that America’s ailing democratic system cannot be repaired.

  • Gary Gerstle is Mellon Professor Emeritus of American History at Cambridge and a Guardian columnist. His new book, The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, will be released in April.

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