Sen. Willard Mitt Romney, the Republican from Utah who broke ranks with Republicans to vote to convict Donald Trump on one of the articles of impeachment, abuse of power, has snapped back into line when it matters most: a Trump Supreme Court nominee. He says his decision isn’t based on “a subjective test of ‘fairness’ which, like beauty, is in the eye of the beholder,” but on “the Constitution and precedent.” And then makes up some real bullshit on precedent: "The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own." Except for when a Democratic Senate confirmed Ronald Reagan’s nominee, Anthony Kennedy, in 1988.
“The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own,” he says. Historical precedent set by Mitch McConnell in 2016 in order to steal a Supreme Court seat from President Barack Obama. Maybe in the future we’ll have to call it the Romney Doctrine, just to cement for history how pathetic he is.
This means McConnell has the votes. He doesn’t know (supposedly) the nominee yet, but he’s got the votes. It’s worth noting that he’s been sitting on the HEROES Act coronavirus relief bill for four months without acting, but will try to push a Supreme Court nominee in five weeks. It means that Sen. Susan Collins now has permission from McConnell to vote against the nominee, if she thinks that will save her pathetic political skin, because he doesn’t need her vote. It will be too little, too late for Collins, but that’s what will happen.
There is no point in accusing Republican senators of hypocrisy. Absolutely none. Only hours after the death of Supreme Court icon Ruth Bader Ginsburg, Republicans—who had previously gnashed their teeth at the audacity of the suggestion that the nation's first nonwhite president had the constitutional power to make nominations to the court at any point during the final year of his term—began declaring that this time around, obviously that new rule no longer applies. And obviously the president of their own party, impeached and transparently corrupt, must be granted a scrambling court even as voters line up to cast early ballots.
Hypocrisy implies there’s a previous ideology being upset; there wasn't one, and isn't one, and no serious politics-watcher ever thought otherwise. The principle being upheld by Sen. Mitch McConnell and clan then and now was more simple: Retain power using all available tools, and deny the opposition power using all available tools. There is no "ideology" inside the modern conservative movement, either before Trump's arrival or afterwards, that can survive its first brush with expediency. Each argument lasts only as long as the soundbites require and will be replaced with a new one immediately, without hesitation, when required.
Expediency as ideology is not a senate-only device. Former Supreme Court Justice Antonin Scalia practiced it with aplomb, often resulting in lawyers and courts using his past words against him in new cases—a futile gesture. Of his "originalist," "textualist," or "institutionalist" allies, the same approach is used by All Of Them.
It's not hypocrisy if the principle all along was "whatever best increases power." And it is irrelevant if it is.
The relevant part is that it is accomplished by lying. The practitioners claim some bold new notion of how the world should work, and it is an absolute, baldfaced, bullshit-laden public lie. Those who watch McConnell or Sen. Lindsey Graham in their public appearances can easily identify, at this point, the schtick that makes up their entire persona.
They look the American public in the eye, and they simply lie to them.
“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination." pic.twitter.com/quD1K5j9pz
It was a lie from the moment he uttered it, and there was not a person in the room who didn’t know it from the outset. The movement is devoted to lying as governing principle. It works because there are countless channels through which those lies can be disseminated, and amplified, and praised. It will continue for as long as it works.
Over and over. About everything, all the time. The Moscow Turtle has never cried a sincere tear in his life, but according to him all Democratic actions are Devastation, all Republican actions are Sorrowfully Required Due To Democratic Existence, and the rest is puppet show. Graham is superb at being outraged in showy defense of the outrageous. Sen. Marco Rubio's usual deployed device is to respond to each act of corruption or depravity with a Bible verse, typically as non sequitur, and wiping his hands of the rest of it. Sen. Susan Collins is forever concerned by gross incompetence or criminality within her movement, and remains equally as concerned the next time around, and will make good on that "concern" exactly zero times as she votes to enable each concerning act one-by-one-by-one.
It's not hypocrisy. They're just liars. Conservatism is a movement of fictions, a series of nonsense falsehoods deployed like a squid ejects ink. Nobody asks the squid whether it stands by the cloud ejaculated in the last crisis. It would be pointless. The squid doesn't remember, and can't tell you.
It is not that the nation is run by a movement of "hypocrites." The nation is run by a collection of liars.
Propagandists.
Those who issue false statements and make false claims relentlessly in order to deceive the public, or to stir their base into new heights of feverishness, or—and this is rather more to the point in this particular year—to justify and endorse criminality in service to the movement. Incompetence, if in service to the movement. A quarter million deaths, if in service to the movement.
The lies are consequential. McConnell and his allies lied their way through the impeachment of a president, simply insisting that the evidence was not evidence and the testimony not testimony. The movement has lied its way through a pandemic, turning even the most rote of pandemic safety precautions—masks, even—into conspiracies and partisan litmus tests.
When Michael Caputo and his aides insisted that children were nearly immune to the virus and could not spread it, it was not ideology. It was a lie meant to keep more of the "economy" open even if the more pertinent metric—deaths—was multiplied.
When the movement claims "antifa"—a group that does not actually exist—is behind police reform protests, it is a lie. It is propaganda intended purely to discredit protestors, and better facilitate state and militia violence against them.
When Sen. Ron Johnson pipelines the work of known Russian operatives into his committee to declare that he has discovered very serious doings, doings that suggest his opponents are secretly corrupt in ways no American law enforcement has ever been able to find, he is fully aware of his own actions. He is not stupid.
When Attorney General William Barr releases a document that grossly undermines a report on Russian election interference that benefited his party, and follows up by launching conspiracy after conspiracy all premised on the notion that it is American law enforcement that is corrupt for going after Republican targets, he is lying to the public for the sake of the party.
The movement ofRepublicanism is propagandistic in nature. Lies are deployed towards political ends. All involved know they are lies. All involved spread the lies willingly. Fox News exists as propaganda factory. Donald Trump exists as propaganda factory. McConnell exists as propaganda factory. The sitting attorney general, the president's odd private lawyer—the only through line is relentless lying to the public about everything, all the time, for power.
There's no textualist in conservatism. Nonsense about precedents and institutions is barely even given lip service. There are no "deficit hawks," or "small government" idealism. None of those things have survived. The only takeaway from White House press briefings is a single, fundamental point: These are today's lies. If you don't like them, there will be others tomorrow.
There is a word for all of this. Declaring that your leaders are allowed to commit crimes while demanding the arrest of enemies on false charges; the rejection of facts and the explicit declaration that the free press is an enemy of the people for presenting information that conflicts with the state's own preferred interpretations; the altering and realtering of supposed norms so that the opposition is, invariably, declared to be out of control in their requests, so out of control that it is now necessary to alter the rules of government to properly constrain them:
It is authoritarianism. The party is a propaganda movement devoted only to self-preservation. There is not a stitch of prior ideological principle that will survive from 2016 to 2020—or from 2018 on a Monday to 2018 on a Tuesday. The rules are whatever they need to be to suppress the movement's perceived enemies. Not merely for a desperately needed Supreme Court seat, but for the now-existential election and all its myriad details.
Appearing on ABC’s This Week on Sunday morning, House Speaker Nancy Pelosi honored the late Justice Ruth Bader Ginsburg by aptly describing her as a “brilliant brain” on the Supreme Court, reminded people that it’s absolutely imperative to get out and vote this November, and the ongoing importance of battling the novel coronavirus pandemic. On the subject of the vacant Supreme Court seat, the Democrat from California didn’t rule out launching an impeachment inquiry of Donald Trump (for the second time) or Attorney General Bill Barr, which would delay the Senate’s ability to confirm a Supreme Court nominee of Trump’s, either.
When host George Stephanopoulos hypothesized a major concern of progressives—that even if former vice president Joe Biden wins the election, Republicans and the White House might try to push through a nominee anyway in a lame-duck session—Pelosi replied: "We have our options.” The speaker continued, “We have arrows in our quiver that I'm not about to discuss right now but the fact is we have a big challenge in our country. This president has threatened to not even accept the results of the election.”
She stressed that the “main goal” is ultimately to “protect the integrity of the election as we protect the people from the coronavirus." The speaker noted that she believed the late Ginsburg would want that same goal. Pelosi also clarified that “None of us has any interest in shutting down the government,” saying it would be too harmful to so many people in the nation.
“When people say, what can I do? You can vote,” the speaker stressed. “You can get out the vote, and you can do so as soon as possible.” She added that the same day we lost Ginsburg, ten states started early voting.
Stephanopoulos circled back to a potential impeachment inquiry and asked if the House would “rule anything out.” Pelosi drove home the basic tenant of public service: responsibility to the people.
"We have a responsibility,” she stated. “We take an oath to protect and defend the constitution of the United States." (If only Trump saw it that way.) Pelosi continued: “We have a responsibility to meet the needs of the American people. When we weigh the equities of protecting our democracy, requires us to use every arrow in our quiver.”
Here is that clip.
“We have our options. We have arrows in our quiver that I’m not about to discuss right now,” Speaker Pelosi tells @GStephanopoulos when pressed on what Democrats would do if Pres. Trump and Republicans push a SCOTUS nomination ahead of the Nov. 3 election. https://t.co/JhU93KY3iQpic.twitter.com/HOmI8AxREN
Lastly, Stephanopoulos asked about another big topic among progressives: expanding the court. To that, Pelosi said, “Well, let's just win the election,” adding that she hopes the president will “see the light.” The speaker then used her final talking time to home in on the importance of the Affordable Care Act, and how much the average American has at stake in this election cycle.
Last night and this morning, I felt like crawling into a hole for the next 40 days or so. And not a deep hole. I didn’t have the energy or joie de vivre for a deep hole. It would have been a shallow hole. Barely a hole at all. Really, I would have just lay down in the dirt until my DNA fused to the worms’ and slugs’ and grasses’ much more upbeat genetic material.
But I’m a more resilient guy ever since I got into therapy and on antidepressants (I recommend both if you’re struggling). And this morning a friend sent me this Atlantic story from former George W. Bush speechwriter and confirmed NeverTrumper David Frum.
He makes some excellent points (one of them being, don't swallow your tongue in abject, pants-shitting fear just yet):
What McConnell did in 2016 was an assertion of brute power, and what he proposes in 2020 is another assertion of brute power. And so the question arises: Does McConnell in fact have the power he asserts?
The answer may be no, for four reasons.
Do tell, David Frum:
The polls do not favor Susan Collins, Cory Gardner, or Thom Tillis—senators from Maine, Colorado, and North Carolina up for reelection this cycle. Yet these competitors may not be ready to attend their own funerals. They may regard voting against McConnell's Court grab as a heaven-sent chance to prove their independence from an unpopular president—and to thereby save their own seats.
Lisa Murkowski of Alaska has also made skeptical noises, and even Lindsey Graham of South Carolina may flinch. He faces an unexpectedly tough race this year, and he is extra-emphatically on the record vowing not to support a Supreme Court confirmation vote in the later part of a presidential year.
Frum also asks if Trump can find a woman nominee (Trump almost needs to nominate a woman to replace the legendary RBG, lest his female support erode even further) at the 11th hour who will be viewed as moderate enough by the senators who could be thinking of defecting.
Any last-minute Trump nominee will face a gantlet of opposition in the Senate, a firestorm of opposition in the country, and probably a lifetime of suspicion from the majority of the country.
Can McConnell and Trump find an appointee willing to risk all that for the chance—but not the guarantee—of a Supreme Court seat? Specifically, can they find a woman willing to do it? The optics of replacing Ginsburg with a man may be too ugly even for the Trump administration. And if they can find a woman, can they find a woman sufficiently moderate-seeming to provide cover to anxious senators? The task may prove harder than immediately assumed.
In addition, Yertle the Asshole’s hypocrisy on this issue is so egregiously off the charts it might create a mutually assured destruction scenario in which Democrats (assuming Biden wins and Dems retake the Senate) feel justified in packing the court by, say, adding two more justices.
But a last-minute overreach by McConnell could seem so illegitimate to Democrats as to justify radical countermoves should they win in November: increasing the number of appellate judges and Supreme Court justices; conceivably even opening impeachment hearings against Justice Brett Kavanaugh.
McConnell may want the win badly enough to dismiss those risks. But many conservative-leaning lawyers in the country may be more cautious. And their voices will get a hearing in a contentious nomination fight—not only by the national media, but by some of the less Trump-y Republican senators. This could be enough to slow down a process that has no time to spare.
I think Frum makes some great points, and anything that will keep me from reaching for the shovel is welcome news right now.
So let’s breathe, and keep fighting on.
A Democratic Senate has never been more important. Make it so.
Of course we’re crying. A woman who held us all up for so, so long has finally laid down her burden after the literal fight of a lifetime. We’re hurting. We’re afraid. We miss her already.
But Republicans are already celebrating the death of pioneering Supreme Court Justice Ruth Bader Ginsburg as an opportunity. Donald Trump is calling on Republicans to act quickly to confirm whatever nominee he puts forward. Senate Majority Leader Mitch McConnell is contemplating whether a no-witnesses impeachment can be topped with a no-hearings confirmation. Ted Cruz is thinking about nothing except what he won’t be wearing under that black robe. Tom Cotton is speeding through his collection of KKK-approved all-white handkerchiefs mopping up all of the drool. And Josh Hawley is … probably shooting something.
There is absolutely no doubt that the GOP will now engage in the Hypocrisy Olympics, working hard to master the art of the 180-degree turn and racing to put Trump’s nominee across the line in record time. But a mere willingness start a hell-in-a-handbasket assembly line may not be enough to put another butt in Ginsburg’s seat on the Court before it even has a chance to cool. Democrats are not about to roll over. This is a fight worth having.
2020 may have robbed us of both Ruth Bader Ginsburg and Rep. John Lewis, but it’s time to get in Good Trouble. And there are multiple ways to fight.
“From where I sit, Ruth Bader Ginsburg's dying wish was not that McConnell would do the right thing. She knew he wouldn't. It was that we would FIGHT LIKE HELL to preserve her legacy.” — Elie Mystal, The Nation
Hillary Clinton has offered a three-part plan for fighting against the rapid replacement of Justice Ginsburg:
1) Win over GOP Senators on principle.
There are dozens of Republicans who barely finished articulating why there could not be a nomination for a Justice during an election year. Not only did many of them voice this in 2016, some of them have continued to do so over the last four years in the most adamant terms; terms that having included things like “even if this was a Republican president.” It’s included telling America to “use my words against me” if they didn’t hold true to this claim. It may seem that there are no Republicans left willing to stand up for any principle, especially one they created out of convenience in the last election cycle, but that feeds right into the next point.
2) Pressure GOP Senators in tight re-election bids.
There are definitely Republicans in red states who will feel like falling in line behind Trump and McConnell is the only option. But there are also those—like Susan Collins—who are already finding that standing too close to Trump is leaving them with radiation burns. Push them. Make this an issue. There’s absolutely no doubt that, no matter who Trump nominates, it will be some Federalist Society-approved ultraconservative, ready to tear down everything Justice Ginsburg accomplished and paint the nation in a shade of industrial repression gray. Make it clear that anyone voting for Trump’s nominee—anyone who even supports a vote on Trump’s nominee—is supporting the reversal of every gain made under Ginsburg.
3) Use procedural obstacles in the Senate.
There are not nearly as many obstacles here as there used to be, because the idea that the Senate runs on rules has been simply discarded by McConnell—who regularly discards the idea of regular order to simply do as he pleases. Still, there are some shreds remaining. To start with, Democrats must refuse a continuing resolution so long as there is any threat of McConnell forwarding a nominee. Unless there is a binding agreement—an agreement that goes way beyond McConnell’s word—shut it all the #$%@ down. In addition, Democrats must deny the Senate unanimous consent. Not just unanimous consent on the nomination, but on everything. The Senate has less than two weeks of scheduled sessions in the remainder of the year. Democrats need to deploy every possible roadblock to scheduling hearings, holding hearings, bringing a nominee forward, scheduling a vote … these are delaying tactics, and there’s little doubt that McConnell will run over them all. Only, if the polls start to show that Americans aren’t happy about the nominee or the process, McConnell might start to lose some of these procedural votes.
In Times/Siena polls of Maine, North Carolina and Arizona released Friday, voters preferred Mr. Biden to select the next Supreme Court justice by 12 percentage points, 53 percent to 41 percent. In each of the three states, Mr. Biden led by just a slightly wider margin on choosing the next justice than he did over all.
According to that poll, the desire to see Biden pick the nominee is actually higher than the base support for Biden. This could very well mean that the importance of this issue gets driven home to Republicans up for reelection in a very visible way.
But if any of the above is going to happen, it’s also going to have to happen in the streets, on the phones, and in every forum where Democrats—and everyone else—can make it clear that the legacy of Justice Ruth Bader Ginsburg must be preserved at all cost. She carried us this far. Now we have to carry her dream.
Ruth Bader Ginsburg’s body isn’t even cold and Mitch McConnell is dancing on her grave. This is war. Dems have powerful weapons. Now is the time to use them.
When Supreme Court Justice Antonin Scalia died in February of 2016, Senate Republicans discovered a heretofore unidentified, now-infamous caveat to President Barack Obama's constitutional powers: Black presidents aren't allowed to fill vacant Supreme Court seats during an election year. The Senate refused to even consider the nomination of Merrick Garland, who was put forward by Obama for the role; instead, the seat was simply left vacant for the duration of Obama's term. When Republican Trump was installed as president the next year, the Senate swiftly confirmed his own conservative nominee.
Senate Majority Leader Mitch McConnell and fawning Trump golf partner Sen. Lindsey Graham, among others, have not been shy in declaring that the previously made-up rule no longer applies under Trump. On the contrary, they say the Senate would move swiftly to confirm any last-minute nominees if a vacancy were to arise in the last months of Trump's calamitous term. The recent diagnosis of liberal court icon Justice Ruth Bader Ginsburg with liver cancer (she is by all accounts being successfully treated) is putting new focus on these Republican court-packing inventions and un-inventions—and is pushing Democratic senators to more seriously consider expanding the court to rebalance it in the face of blatant Republican sabotages.
Whether Democratic senators will have the guts to actually do the thing remains an open question. But Sen. Tim Kaine—not exactly a liberal firebreather—is among those now open to expanding the Supreme Court if McConnell, Graham, and the others are insistent on undoing their own supposed ban on election-year nominees, notes NBC:
"If they show that they're unwilling to respect precedent, rules and history, then they can't feign surprise when others talk about using a statutory option that we have that's fully constitutional in our availability."
Unfortunately, that is phrased as a threat that depends on if Republicans go any further than they already have, rather than an observation about just how far they have already gone. The Democratic National Committee may go farther; they’re planning to make a call for "structural" court reforms part of the party platform.
The current Supreme Court has lost its legitimacy, and for structural rather than ideological reasons. The blocking of an Obama justice under a newly invented partisan rule that was discarded immediately afterwards put Neil Gorsuch on the court illegitimately; the Republican Senate's role in hiding evidence during Brett Kavanaugh's confirmation hearings was a near-perfect runup to the fiasco of discarded impeachment charges against Trump, not because anyone was willing to argue that Trump did not do the political extortion he was charged with but because Republican senators declared they simply did not wish to hear any evidence either way. The court is a product of the same Republican corruption that has debased the rest of Washington, and the nation. The party broke it.
“It would be very dangerous for Americans to begin to believe the Supreme Court was not the legitimate arbiter of our nation's laws,” we often hear. True, but that ship has sailed. The Supreme Court is a parody of itself already; you cannot even make good money making bets as to which conservative justices will discard their own precedents and proclamations to bend each new argument towards the preferred "conservative" outcome, because everybody else also knows that the core of conservative justices will make those flips of logic whenever the need arises. Pointing it out is now a consistent feature—and perhaps the most consistent feature—of non-conservative dissents.
It is true that Trump replacing any Supreme Court position in the next few months would quickly blossom into yet another crisis of government as the Senate swiftly erased whatever self-declared impediments were thrown up in the past, the whole of America watched it happen, and a good chunk of America came to the conclusion that the Supreme Court was now simply a structural appendage of the Republican Party. Again, though: ship, sailed. Watching the Kavanaugh nomination and listening to McConnell's unending carousel of new-rules-that-are-not, does anyone think the Supreme Court is not that appendage right now?
You might say the Trump campaign and evangelical right are playing right into the progressives’ hands with the new chatter about Trump agitating for a Supreme Court nomination before the election. Trump believes he could shore up the rabid base and get back older voters and (get this) women with a new Supreme Court justice, particularly if he chooses a woman. Because we are ready to have a fight over the Supreme Court, one that would leave a lot of Senate Republicans very bruised.
Trump is raging, apparently, about Chief Justice John Roberts, who helped deliver three big defeats in the past weeks on Dreamers, LGBTQ rights, and abortion. "So far, we’re not doing so well," he told the Christian Broadcasting Network last week. "It says, look, you've had a lot of losses with a court that was supposed to be in our favor." The Supreme Court is supposed to be his, and do his bidding. It's not so much that he cares about all these evangelical issues, but dammit, he's not supposed to be thwarted by his court.
He's also hearing from the right-wingers regularly that he has been wronged. Like from Mike Huckabee, who tweeted that Roberts has "stabbed the American people in the back" and should "Resign Now." American Conservative Union chairman Matt Schlapp says: "If it were up to me, I'd start impeachment proceedings against John G. Roberts Jr. […] If he's not going to be impeached, he ought to resign and run for Congress." Interesting to see the right embrace impeaching judges, huh? There're one or two who might make good candidates for the left. Like Brett Kavanaugh, who lied his way through two different sets of confirmation hearings on his way to the SCOTUS.
Progressive groups are pushing to have the Supreme Court become a key election issue. They’ve created a new nonprofit advocacy project: Supreme Court Voter. It's kicking off with a $2 million digital advertising blitz in Arizona, Michigan, North Carolina, Pennsylvania, and Wisconsin. "We can’t afford any more Brett Kavanaughs, or our court will be his court," one ad says over an image of Trump. "The future of the Supreme Court is on the line." Members from Demand Justice, American Federation of Teachers, NARAL Pro-Choice America, Voto Latino, the National Women’s Law Center, and Justice Democrats comprise the advisory board for the effort, and it's boosted by the participation of Sen. Elizabeth Warren. "The Supreme Court Voter project gives us a chance to mobilize progressives, stop Donald Trump's takeover of our courts and create a fairer more equal and just America," she said in a statement for the project’s debut.
Organizers of the project have done polling through Hart Research Associates, finding "overwhelming concern" from progressives and independents about more Trump Supreme Court justices. "The prospect of him being able to put one or two more justices on the Supreme Court is really a powerful image and scenario as a motivator for people to really care about this election,” said Guy Molyneux, senior vice president at Hart. He added that Kavanugh is especially "powerful as a symbol for a liberal audience of what is wrong with the court." Take that, Susan Collins.
Which takes us back to Trump wanting another Supreme Court fight before November, which so far McConnell is welcoming. Should an opening occur (and there're rumors from the right that Justice Samuel Alito is looking at retirement), Trump is going to want to nominate a fire-breathing, evangelical, far-right activist. McConnell says he'll fit that nomination in—in less than three months before the election—after adopting the supposed rule that a Supreme Court nomination couldn't be considered in an election year when Barack Obama was president.
If Trump and McConnell want to have that fight—at the same time Trump is arguing before the Supreme Court that the entire Affordable Care Act should be overturned! In the middle of a pandemic!—bring it. We'll take that fight.
Focusing on the long-term—especially about matters of governmental and political process—isn’t exactly the easiest thing to do in the middle of a pandemic. However, Republicans never seem to think it’s the wrong time to push every button made available to them in their quest to gain as much power as possible. No matter what constitutional or historical norms they have to trample on, Donald Trump and his party are determined to create a conservative judiciary at the federal level that will endure for a quarter-century or more.
Let’s start, however, with what’s going on in 2020. Moscow Mitch—Republican Senate Majority Leader Mitch McConnell, that is—has been doing things the Founders likely never envisioned when they wrote our Constitution. He, along with allies, have been making calls to aging conservative jurists on the federal courts, reminding them that the clock is ticking—on Trump’s time in the White House, on the Republicans’ hold on the Senate, and, most appropriately given his embrace of the nickname “Grim Reaper,” on their very lives. McConnell has been urging them to all retire ASAP so that he and The Man Who Lost The Popular Vote can put as many young whipper-snappers as possible into lifetime seats on the federal bench, seats they’ll hold long past a Sasha Obama presidency.
Democratic Senate Minority Leader Chuck Schumer recently called McConnell out on this blatant manipulation of the process: “Senator McConnell knows he can’t achieve any of his extreme goals legislatively, so he continues to attempt to pull America to the far right by packing the courts.”
As TheNew York Timesnotes, some progressives have made statements urging justices to stay in their positions so that Trump can’t appoint their successors, but McConnell has achieved a new low by targeting individual judges and asking them to retire. This ask is a nasty one, on par with greedy heirs rooting for wealthy relatives to die sometime before 2010 came to an end ... just so they could dodge the temporarily-repealed estate tax.
McConnell here is repeating, in private, sentiments that members of his party such as Senate Judiciary Committee Chair Chuck Grassley publicly expressed in the run-up to the 2018 midterms: “If you are thinking about quitting this year, do it yesterday. If we have a Democrat Senate, you’re never going to get the kind of people that are strict constructionists.”
For anyone confused, “strict constructionists”—i.e., conservative judges who claim that all they do is look to the plain text of the Constitution when making their rulings—is really just a fancy term Republicans use in public to give a more objective veneer to their preferred judicial approach, which almost always—coincidentally, of course—comes down on the side of the powerful. In other words, characterizing conservative judges as strict constructionists sounds less political than saying that they are right-wing ideologues who vote just like Rush Limbaugh would—even though the latter is the truth.
Republicans are being quite systematic about this whole affair. Their efforts are supported by a private organization called the Article III Project, named after the part of the Constitution that establishes lifetime tenure for federal judges, subject to impeachment and removal if they fail to live up to the standard of “good behaviour” laid down therein. This group exists to “fight for the confirmation of President Trump’s judicial nominees.”
The helpful folks over at A3P—that’s their clever moniker—want to clear out as many existing judges as possible. They’ve identified 90 who were appointed by a previous Republican president and who, based on their age and how many years they’ve served, either qualify or will qualify by year’s end for something called senior status.
According to the court system’s rules, those who take senior status now rather than outright retire allow Trump to put another, younger conservative in their place just as if they had retired. But judges on senior status get to keep drawing their full salary, hire clerks, and hear a reduced caseload. If this sounds bananas to you, you’re not alone. In fact, it’s the best of both worlds for those senior judges and for Republican leaders who want to increase their imprint on the judiciary. Thanks to A3P’s work, McConnell has a long list of people to target and a very attractive offer to make them.
McConnell and Trump have made a great effort to, in the senator’s words, “leave no vacancy behind.” They have placed 51 judges onto the U.S. Court of Appeals in Trump’s first three years (and 191 federal judges overall, as well as two on the Supreme Court), compared to 55 in Barack Obama’s entire eight years in office, and 62 during George W. Bush’s presidency. Trump has now named more than one-quarter of all sitting U.S. Appeals Court justices.
A good chunk of those new appellate judges—more than one out of three—took a spot previously held by a Democratic-appointed justice, thus shifting the bench hard to the right. Particularly noteworthy is the contrast between the diversity of the judges Obama appointed—only 31% of whom were white men, compared to 67% for Trump. For reference, somewhere around 40-45% of lawyers are white males, and white males constitute around 30% of the overall U.S. population, according to census data.
The New York Times conducted an in-depth analysis earlier this month of these Trump judges and found that they differ “significantly” from those nominated by either Obama or G.W. Bush. Regarding their activities prior to being nominated by Trump, they had been “more openly engaged in causes important to Republicans, such as opposition to gay marriage and to government funding for abortion.” They were also more likely to have been political appointees and made political donations. Even more alarming has been their impact after taking up their new positions:
When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Mr. Trump has signaled were on his Supreme Court shortlist.
While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, L.G.B.T. rights and lobbying requirements, the examination shows.
Sen. McConnell has long been clear about the level of importance he places on reshaping the federal judiciary. "There are over 1,200 executive branch appointments that come to us for confirmation, and among the most important—in fact, I would argue, the most important—confirmations we have are lifetime appointments to the judiciary," McConnell told NPR. "Obviously, this is my top priority."
McConnell’s success in placing conservative judges on the federal bench during Trump’s tenure is a direct result of his actions in the final two years of Obama’s presidency. After Republicans took control of the Senate in 2015, they basically just stopped approving his nominees. The Brookings Institution noted the “unprecedentedly miniscule number of confirmations” that were carried out in those two years under McConnell’s leadership. That’s why there were 103 open seats on the federal bench for Trump to fill when he was inaugurated.
Without question, the most important of those openings was on the Supreme Court. McConnell ensured that seat remained open for almost a full year after the death of Justice Antonin Scalia by denying a hearing, let alone a vote, to President Obama’s nominee, U.S. District Court Chief Justice Merrick Garland. Garland was a moderate about whom Republican Sen. Orrin Hatch had said in 2010: “I have no doubts that Garland would get a lot of (Senate) votes. And I will do my best to help him get them.” However, Hatch did not keep his word in 2016. Oh, and during the Supreme Court confirmation process for Brett Kavanaugh, he pretended like the Garland nomination never happened. That’s what you call a double back-flip worth of bullshit.
Additionally, Garland was 63 years old when Obama nominated him, so his age itself served as a kind of compromise when compared to, for example, the nomination of 43-year-old Clarence Thomas by George H.W. Bush to a lifetime seat on the highest court back in 1992.
The way McConnell and Co. abused the established process when they essentially ignored a presidential nomination to the Supreme Court also qualifies as unprecedented, despite widely debunked Republican protestations to the contrary. As TheNew York Times editorial board wrote shortly after the 2016 election, the seat in which Justice Neil Gorsuch now sits is a “stolen seat.” Encouraging a mass wave of retirements in order to give Trump an even more outsized imprint on the federal judiciary would, if it succeeds, represent another form of theft.
All of this—from the blocking of Garland to the personalized arm-twisting aimed at getting judges to give up their seats in the coming months before it’s too late—reflects a level of cynicism and rejection of principle that has defined the contemporary Republican Party going back to even before Trump took it over. Principles? To Republicans, those are for suckers, i.e. Democrats.
Our Constitution’s authors were, generally speaking, not naive. They didn’t trust easily—they created the Electoral College because they didn’t trust the people to directly elect our president. However, the Framers failed to anticipate how the rules they wrote into the Constitution might be abused. They likely did not imagine that the Senate’s charge to provide “advice and consent,” as laid out in Article II, Section 2, Clause 2 of the Constitution, would lead to the kind of treatment with which the nomination of Judge Garland was met. The Framers never planned for Mitch McConnell.
Because of what he has done, Democrats are faced with a choice if and when they retake the White House and the Senate. Do they act in kind, and similarly game the system? Or do they take the high road, which would allow Republicans to hold on to their ill-gotten gains in the judicial branch? Keep in minds they all too often use those gains to further tighten their grip on power through judicial rulings on, for example, matters like voting rights or gerrymandering.
There’s only one way out of that dilemma: namely, to fundamentally alter the process so that it could not be gamed so easily. We need to get rid of lifetime tenure for federal judges, from the Supreme Court right on down the line. There are many different proposals out there, most of which focus on term limits for the highest court, but McConnell’s most recent actions make clear that such limits are necessary at lower levels as well. I haven’t seen polling done on term limits for all federal judges, but Supreme Court term limits are quite popular, with Democrats, Republicans, and independents all expressing similar levels of support.
To be sure, it would not be easy to implement such changes, as they would require a constitutional amendment. Nevertheless, such changes are necessary because any process that is based on principles, for example the idea that life tenure for justices is necessary to ensure that they'll be independent and removed from politics, will be abused by Republicans who have no principles at all.
Our democratic system must be governed by processes that prevent abuse by the unprincipled. As I’ve written before, Republicans seem to be taking their cues from young adult fiction of all places, leaning on the values of Harry Potter’s nemesis, Lord Voldemort—derived from Friedrich Nietzsche, the German philosopher who has inspired everyone on the right from Hitler to today’s white nationalists (even if they all get him wrong, but that’s another story): “There is no good and evil, there is only power, and those too weak to seek it.”
Nancy LeTourneau at Washington Monthlywrote that McConnell’s recent “outreach” to aging Republican judges indicates that he is “running scared” because “he is aware that his party will soon be out of power.” I rarely hope that McConnell is right about anything.
This time, however, Moscow Mitch and I are completely on the same page.
Moscow Mitch McConnell is clutching his phony pearls, shocked, shocked that Sen. Chuck Schumer would dare politicize the Supreme Court. Yes. Mitch McConnell. The McConnell who stole a Supreme Court seat from President Barack Obama and called it, "One of my proudest moments." The same McConnell who refused to allow an FBI investigation into credible allegations of sexual assault against Brett Kavanaugh, the Supreme Court nominee who had perjured himself, repeatedly, before a Senate committee.
In case you missed the brouhaha, Schumer spoke at an abortion rights rally at the Supreme Court Wednesday following the arguments in the latest abortion case, one that threatens the court’s integrity if it reverses a decision made just four years ago that protects access to abortion.
Schumer riffed off of the threat Brett Kavanaugh made to Democratic senators during his confirmation hearing. "You sowed the wind," Kavanaugh snarled at the senators, and "the country will reap the whirlwind." He accused Democrats of "a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election," and even said that his hearing was "revenge on behalf of the Clintons," since he was on Kenneth Starr's team during the Clinton impeachment. So what Schumer said Wednesday echoed Kavanaugh's words back to him. "I want to tell you, Gorsuch. I want to tell you, Kavanaugh," Schumer said, "You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions."
Was the last sentence impolitic? Sure. Schumer admitted as much. Was it threat to Gorsuch and Kavanaugh directly? No. Of course not. It was Schumer telling it like it is: These justices played politics and paid lip service to respecting precedent to get on the court, and they are political actors now. But cue McConnell and his plastic pearls. This was a "threat," McConnell said, a "Senate leader appearing to threaten or incite violence on the steps of the Supreme Court" and "astonishingly, astonishingly reckless and ... irresponsible."
Where was McConnell's concern for the independent judiciary then? Yeah, invisible. McConnell did not say one word in defense of those judges, in defense of an independent judiciary, because he doesn't believe in it. He is more than happy to turn as much of the federal judiciary into Trump courts—TRUMP courts—as he possibly can. It doesn't matter if the judges he installs are unqualified or incompetent or raging extremists and white supremacists. All the better, in fact, for McConnell's vision for our republic.
McConnell is playing with fire here. If this court, now with Neil Gorsuch—the guy he installed by stealing a seat from President Obama—and Brett Kavanaugh—the accused sexual assaulter and perjurer—decides to overturn four-year-old precedent on abortion? If that happens, McConnell's majority is done. Which, by the way, was what Schumer was talking about at the Supreme Court Wednesday. It's what he said on the Senate floor Thursday morning: "The fact that my Republican colleagues have worked, systematically, over the course of decades, to install the judicial infrastructure to take down Roe v. Wade—and do very real damage to the country and the American way of life—that is the issue that will remain."
No one can twist a political knife quite like House Speaker Nancy Pelosi. Think of the now-legendary clapback at impeached president Donald Trump at last year's State of the Union address. She's the queen of shade, and you just knew that Mitch McConnell was going to be on the receiving end of some of that. It hit Saturday morning in a brutal tweet that cast a wide penumbra, taking in the potted plant who presided over last week's sham impeachment trial.
"It is a sad day for America to see Senator McConnell humiliate the Chief Justice of the United States into presiding over a vote which rejected our nation's judicial norms, precedents and institutions which uphold the Constitution and the rule of law," she wrote. Ouch. That's all she said. That's all she needed to say. Chief Justice John Roberts is going to come out of this thing looking like a tool, and it's because of McConnell's machinations. It's because there was no way McConnell was going to let this impeachment trial be anything but a travesty.
History is not going to look kindly on either of those men.