Let’s Be Blunt—the Senate’s Republican Leader Just Simply Opposes American Democracy
There seems to be a contest under way to see who can deny democracy the most, the fastest or the most efficiently.
The flawed Arizona vote audit shows signs of metastasizing. But it is an inefficient, costly and possibly illegal way to go about trying to re-win a lost election no matter how many states take up the errant cause of Big Steal.
Unearthing old and apparently incorrect Department of Justice subpoenas and gag orders meant to silence questions about bad behavior is not working. The effort may end up bringing more legal problems than resolving reporter leaks.
The rolling passage of vote-suppressing bills by compliant Republican state legislatures looks effective only if the federal government doesn’t force the whole effort to stop.
But for quick, effective, one-stop democracy denial, there’s still no better person to turn than Mitch McConnell, Senate minority leader and a constant thorn in the side of actual democracy.
In an interview with conservative radio personality Hugh Hewitt, the obstructionist said that if Republicans regain the Senate majority in 2022, it’s “highly unlikely” he would allow Joe Biden to fill a Supreme Court vacancy that opened during the 2024 presidential election.
For that matter, McConnell also suggested that he would not let Biden fill a Supreme Court vacancy in 2023, even if the president nominated “a normal mainstream liberal.”
As Mark Joseph Stern, who writes about the court for Slate, said, “The Republican Party has outsourced much of its agenda to the federal judiciary, a strategy that requires its lawmakers to ruthlessly extinguish Democrats’ influence over the courts.
“To that end, a GOP-controlled Senate will never again confirm a Democratic president’s Supreme Court nominee. Not in an election year or any other year. Not in your lifetime or mine. Never.”
Now, that’s an effective democracy killer, along with McConnell’s continuing pledge to oppose voting rights bills and, basically, anything that Biden proposes.
The McConnell Doctrine
The McConnell plan is simply to block any attempt to put a Biden appointee on the court and to hope for a Republican inauguration in 2025 based on all the gerrymandering, rule-changing, vote-limiting efforts that the GOP can bring to bear.
He’s insisting in his McConnell Doctrine that if Republicans regain the Senate majority in 2022, it’s “highly unlikely” an opposing Senate majority would allow Biden to fill a Supreme Court vacancy that opened during the presidential election year.
“I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” McConnell said.
“So, I think it’s highly unlikely.”
And he doubted there would be sufficient time for a Republican majority to fully consider a Biden appointee in 2023.
McConnell has honed his anti-Democrat, anti-democracy skills over years, having successfully postponed the nomination of Merrick Garland as a justice by former President Barack Obama. McConnell pushed all the rules aside to force through the confirmations of Trump’s three Supreme Court justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, each of them controversial in one manner or another. Plus, he helped design and manage the Republican-engineered speedway for confirmation of 200 conservative federal judges.
The Republican-controlled Senate confirmed just two Obama nominees to the federal courts of appeals in his final two years. McConnell refused even to consider most of these nominees, holding seats vacant for years.
Along the way, McConnell, a longtime Senate rules tactician, waived whatever his last statement had been to fit the bigger McConnell goal – stuffing the federal judiciary with conservative judges. While insisting that American voters needed a say in pending judgeships to deny a vote on Garland, for example, McConnell’s majority continued to confirm conservative judges into January – after the November elections had voted in a Democratic president.
All of this is putting pressure on Justice Stephen Breyer, a liberal on the court in his 80s, to step down now. Breyer has made several statements advising all not to see the court as a political institution. He says he has no interest in retiring.
Who’s the Activist Here?
McConnell’s approach to judges reflects two core Republican principles, argues columnist Stern: “First, that only the federal judiciary can impose key items in the Republican Party platform that are too unpopular to pass through the democratic process; and second, that only conservative judges faithfully apply the Constitution, whereas liberals make it up as they go along.”
In this worldview, when judges issue decisions that align with Democrats’ priorities, they are judicial activists who are betraying their duties to apply the law as written. When judges issue decisions that align with Republicans’ priorities, by contrast, they are independent jurists honoring original intent.
It is a view that wrongly misses the need for constant interpretation and adjustment to technology, cultural shifts, recognition of non-legal social policy and the rest of what we think of our modern world. The slave-owning world of the Framers never envisioned the specific questions posed by advances in medicine, technology, science or even racial and gender-related relations.
The Republican thinking, however, allows policy to continue or to become the law of the land even when it cannot be passed through legislation. Thus, our failure to pass gun limits, despite popular support, instead has been strengthened by the courts, particularly with its new conservative lean.
As a result, the courts have upheld cases that extend open-carry laws and turned down efforts to ban assault weapons or control the use of large-capacity gun magazines.
Similarly, conservative judges have used freedom of religion clauses to limit contraceptives usage and the rights of same-sex marriage participants. With more conservative judges in play, Republican policies from abolishing affirmative action to hobbling environmental protections to shredding voting rights have a greater chance of permanency.
And yet, magically, none of this is called “judicial activism,” the tip-of-tongue phrase that describes any “liberal” judicial action.
To date, Democrats have not become equally fierce and partisan, though the first Biden appointee to the appeals court was confirmed this week, Judge Ketanji Brown Jackson, a Black woman. Still, there are more than a hundred court vacancies, and each one is a guaranteed fight.
Among many partisan choices, McConnell remains a favorite for the anti-democracy crown.