James P. Freeman: McConnell the central figure in reshaping the Supreme Court


Perched high above the fray, Senate Majority Leader Mitch McConnell (R.Ky.) has comported himself in going about the people’s business like that of the reserved Barred Owl: observing keenly, roosting quietly, and acting decisively. Such attributes have allowed McConnell — a tactical and strategic master of parliamentary maneuvers — to calmly consolidate power, particularly with regard to shaping Supreme Court appointments.

President  Trump may have nominated Judge Brett Kavanaugh to the Supreme Court, but Kavanaugh’s likely confirmation to the court this year will be because of something McConnell understood almost five years ago.

In November  2013, at the urging of then-Majority Leader Harry Reid (D.-Nev.), Democrats — voting along party lines — changed the rules of the Senate. This became known as “the nuclear option.” As The Atlantic then noted, under the new rules, “presidential nominees for all executive-branch position — including the Cabinet — and judicial vacancies below the Supreme Court could advance with a simple majority of 51 votes.”

(The rules for legislation were untouched, but the nuclear fallout was that the 60-vote threshold for overcoming a filibuster on nearly all nominations was dead; the net effect is that the minority party is nearly powerless to stop these nominations.)

Furious, then-Minority Leader McConnell issued a stern and prescient warning to Democrats on the Senate floor: “You’ll regret this, and you may regret this a lot sooner than you think.”

McConnell could not have imagined that members of his party — and, by extension, conservatives — would soon be the beneficiaries of his prophetic words.

After the 2014 mid-term elections, Republicans regained control of the Senate. The significance of this became apparent upon the death of Supreme Court Justice Antonin Scalia, in February 2016. An intellectual heavyweight, he was, by all accounts, the staunchest conservative on the court. And Republicans rightly feared that President  Obama would not replace Scalia with another conservative. They were correct.

Obama nominated Appeals Court Judge Merrick B. Garland, a centrist, to the Supreme Court in March 2016. He was indeed no Scalia. The Washington Post wrote that Obama figured that “the highly regarded jurist might blunt some of the expected political attacks and ultimately embarrass Senate Republicans into dropping their fierce opposition to the nomination.” Obama badly miscalculated Republican judicial motivations.

In a stroke of bold politics, McConnell imposed a blockade of the Garland nomination, letting it languish — without a hearing or a vote — until after the 2016 presidential elections. The action, or inaction, denied Obama the chance to replace Scalia. If anything, it proved a successful delaying tactic.

McConnell could hardly have foreseen a Trump (Republican) presidency but he knew that even if Republicans fell back into minority status in the Senate and Democrats retained the presidency after the elections, he could engineer a filibuster of Garland or another Supreme Court nominee. (Recall that the nuclear option did not apply to nominees of the high court.)

But Trump won, and Republicans still controlled the Senate.

Fulfilling a promise to nominate conservative justices, the new president nominated Court of Appeals Judge Neil Gorsuch in early 2017. Expressing their displeasure, Democrats in the Senate threatened to filibuster the conservative jurist, an option still available to them.

While Reid went nuclear in 2013, McConnell went thermonuclear in 2017.

Republicans in the Senate changed the rules whereby the nuclear option would also apply to Supreme Court nominees, not just lower-court nominees. (Democrats had threatened a similar change before they unexpectedly lost the 2016 election). Last month, The New York Times reminded its readers that “simple majority approval for considering and confirming Supreme Court nominations is the standing policy of the Senate now.”

While both parties have tinkered with procedural changes in the Senate in the short run, Republicans are using it to their advantage for the long run.

The Boston Globe recently reported that Trump (guided by Republicans) has already appointed 44 judges since taking office — “including more appellate judges than any president in American history at this point in his tenure.” He has another 88 nominees currently pending before the Senate. “If,” The Globe asserts, “Trump is able to fill just the current vacancies alone, he will be responsible for installing more than one-fifth of the sitting judges in the United States.”

Barring a political catastrophe for them this November, McConnell and the Republicans will likely retain power in the Senate. Consequently, they will continue controlling Supreme Court nominations and other federal court nominations. At least for two more years.

The retirement of Justice Anthony M. Kennedy means that there are no longer any justices serving on the Supreme Court who were nominated by President  Reagan. However, should just one more justice leave the high court before the 2020 presidential elections, Trump’s changes to the composition of the court would rival those made in the Reagan era.

History will show that McConnell also played a critical role in reshaping the court for generations to come.

James P. Freeman, a former banker, is a New England-based essayist. This piece first ran in Inside Sources.