As the Senate moves toward confirming Amy Coney Barrett to a lifetime appointment on the Supreme Court, we need to remember that Mitch McConnell radically altered the process for choosing Supreme Court justices. In an unprecedented move, he denied Merrick Garland a hearing after Barack Obama nominated him in March of 2016, almost nine months before the presidential election. After Trump won, McConnell then scrapped the filibuster for confirmation hearings for Supreme Court justices to jam Neil Gorsuch through the process. It was a show of raw political power that ended norms and traditions that had guided the confirmation process for decades.
When McConnell refused Garland a hearing, he said that we were in a presidential election year and the American people deserved a say in choosing the next Supreme Court justice. His declaration was clearly a new rule, or norm, and Republican Senators all came out in agreement. They are on record claiming that the Senate should not confirm a new Supreme Court justice in the year before an election. Lindsey Graham went so far as to say, “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.” Of course, they all lied. They fully support Trump’s nominee of Amy Coney Barrett and the hearings this week are little more than a formality.
McConnell’s destruction of the traditions governing judicial appointments goes beyond Supreme Court nominees. He’s been hell bent on packing the federal judiciary with conservative justices for years and he’s taken a by-any-means-necessary approach, destroying norms and traditions along the way. His use of the filibuster was radical when he was in the minority and, when the GOP gained control of the Senate in 2014, he shut down virtually all of Obama’s judicial appointments. Once Trump won the presidency, he sped up the process for appointing judges, ignoring recommendations of the American Bar Association and instead following the wishes of ideological groups like the Federalist Society.
While pundits and Republicans point to Harry Reid using the so-called “nuclear option” to end the filibuster for judicial appointments, it was McConnell’s abuse of the filibuster and refusal to compromise that led to Reid’s decision. During the 111th Congress in 2009-2010, McConnell used the filibuster to stop appointments and legislation more than twice as much as any minority leader before him, Democrat or Republican. That’s the very definition of destroying norms.
So to review, Mitch McConnell abused the filibuster to deny President Obama appointments to both the judiciary and his administration. In 2016, McConnell withheld a hearing for a Supreme Court nominee by claiming that no Supreme Court nominee should be approved during an election year, implying he was beginning a new tradition, one to which most GOP members of the Senate pledged to adhere . McConnell then scrapped the filibuster for Supreme Court nominees to ram through the nomination of Neil Gorsuch. This week, McConnell is violating the rule he created in 2016, moving the goalposts to rush through a Supreme Court nominee just days before a presidential election. If Democrats take control of the Senate again, they should ask, “What would Mitch do?” and then act accordingly.
Thomas Mills is the founder and publisher of PoliticsNC.com. Before beginning PoliticsNC, Thomas spent twenty years as a political and public affairs consultant. Learn more >