As voters watch the gyrations of Senate Majority Leader Mitch McConnell over Supreme Court nominees, one thing is clear: McConnell is calculating that his time as leader is running out.
It’s about the only credible explanation for the whoppers McConnell has produced since just hours after the death of Ruth Bader Ginsberg.
Consider: When McConnell announced, again, hours after the death of Antonin Scalia on Feb. 13, 2016, that the Senate would not be taking up any nomination by President Barack Obama, it was nearly nine months before the presidential election he said must intervene before the Senate acted.
The McConnell “rule” – really only a maneuver – claimed that high court nominees shouldn’t be considered in an election year, even though 17 justices have been confirmed in these circumstances.
The “rule” was torn up after Ginsberg’s death, with 45 days remaining before the election. The double standard is breathtaking, but all too predictable.
McConnell set only two goals when Donald Trump became president: a mammoth tax cut for big corporations and the wealthy, and packing as many judges onto the bench as possible. He achieved both, and is laboring to complete the latter.
He’s posing grave difficulties for his Republican colleagues facing the voters. The 53-member GOP majority was already in doubt, and the burning question now is how many seats will be lost.
Not only in Maine, where Susan Collins is trailing, like freshman Sen. Corey Gardiner in Colorado, but in a half dozen other states Republicans are in jeopardy – even such unlikely places as Iowa, North Carolina, and South Carolina.
McConnell may be safe, but few of his colleagues are, and they can’t be happy about the accelerated schedule behind Amy Coney Barrett. Nonetheless, he’s committed to a vote before the Nov. 3 election, or in a lame duck session.
It’s not the first time McConnell has defied tradition and Senate rules.
He was already serving when Clarence Thomas was shoehorned onto the court in 1991 by a 52-47 vote. Senate Democrats could have filibustered the nomination, but didn’t; nine voted in favor, while several Republicans opposed Thomas.
The outrage over McConnell’s tactics peaked when Brett Kavanaugh became Trump’s second Supreme Court nominee, but the shenanigans began with the first pick, Neil Gorsuch, who assumed the seat Obama’s nominee, Merrick Garland, would have taken.
McConnell quickly fielded a Democratic filibuster motion, then abolished the 60-vote threshold, once and for all. Gorsuch was confirmed, 54-45.
Barrett may or may not be on the Supreme Court by year’s end. Still, Susan Collins can’t help herself by opposing confirmation; as we already know, Collins breaks with McConnell only when her vote isn’t needed.
It’s not too early to consider what we want to do about the Supreme Court – and the wholly political process by which judges get there.
No one imagines there weren’t always political elements; in 1801, John Adams appointed “midnight judges” just before Thomas Jefferson became president.
But it was never solely political. Famously, the two architects of the Warren Court that did so much to expand individual rights in the 1950s and ‘60s, Earl Warren and William Brennan, were both Republicans, appointed by Republican President Dwight Eisenhower – inconceivable, today.
So what can we do? The temptation, if Democrats take the Senate majority, is to “pack the courts,” not as McConnell has done, but by expanding the number of justices – as Franklin Roosevelt proposed, but failed to do in 1937, after a revolt by his own party.
A better solution is term limits. I generally oppose term limits for elective office, including president, but they’re appropriate for the federal judges who now get lifetime appointments.
No state court has such appointments; Maine is typical in specifying seven years, with judges often reappointed, even by governors of the “opposite” party.
It could be a stretch to switch from lifetime to seven-year appointments for federal judges. One could envision a 14-year term, making it unlikely a Supreme Court judge would ever be reappointed – even by a president of the same party.
Yes, it would take a constitutional amendment, but it would break the toxic cycle of contemporary court-packing, begun by Republicans putting young judges of no great experience onto the highest court so they can serve for decades.
Ultimately, judges must be answerable to the people, as elected officials are. A democratic system can’t retain integrity if there’s only minority support for constitutional decisions.
Term limits are likely the best, and perhaps the only way to guarantee that principle.
Voters can change their leaders in the executive and legislative branches. They must be able to trust that judges have more than politics in mind when they hand down rulings.
Douglas Rooks, a Maine editor, reporter, opinion writer and author for 35 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at drooks@tds.net
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