Much has been made of Senate Minority Leader Mitch McConnell’s flip-floppy attitude toward Supreme Justice confirmations. When a Democrat in the White House wants the Senate to confirm a nominee – President Obama and Merrick Garland – McConnell is suddenly very sensitive to the remaining time in the president’s term: only one year remaining! We can’t have an 11th-hour appointment to the Supreme Court without giving the voters a chance to weigh in! (The American voters had already weighed in: they had elected Obama twice.)
But when a Republican is in the White House and wants the Senate to confirm a nominee six weeks before a presidential election – three minutes to midnight! - suddenly McConnell is no longer interested in voters weighing in; he moves heaven and earth to squeeze that nominee through confirmation under the wire (Trump and Barrett).
Of course such hypocrisy is odious, but it is only one of a great many cogs in the McConnell machine: he has made a career of stacking the judicial system with far-right-leaning judges. And this steadfast practice has had a decisive long-term impact: it has contorted the nation’s three-branch system of governance to push policymaking off the plate of the legislative branch, where it (by design) belongs, onto the plate of the judicial branch.
On some abstract level, this is political genius: it not only skews US policy far to the right, where McConnell and his ilk would have it, without the bother of actual legislative sanction; it sets that policy long-term, free of the cyclic purview of legislators (and party dominance) in flux.
Moreover, it relieves McConnell’s GOP of the burden of having to persuade the electorate of anything. No more winning of hearts and minds required, no need for further public discourse. The only hearts and minds that matter anymore are those of the ultra-conservative judges whose seats McConnell has provided.
He understands that “you don’t need to win elections to enact Republican policy,” noted Slate legal analyst Mark Joseph Stern. “You don’t need to push ballot initiatives or win over the views of the people. All you have to do is stack the courts. You only need 51 votes in the Senate to stack the courts with far-right partisan activists, and they will enact Republican policies under the guise of judicial review, policies that could never pass through the democratic process. And those policies will be bulletproof, because they will be called ‘law’.” [cited by Heather Cox Richardson 3/4/2024]
That’s Mitch McConnell’s America – an America where a minority (his) rules, and the voice of the electorate is ultimately inconsequential.
For this scheme to work, however, McConnell and his GOP peers have been obliged to realize that despite their unceasing industry, there are still more non-partisan, non-extremist judges in the system than not – and for their policy manipulation to be effective, they have to get the right cases in front of the right judges. This is called judge-shopping, a practice that has been in place for some time now.
The practice exploits the current deployment of federal courts across states, with some courts having many active judges and some having very few. These courts are typically distributed so that litigants are not overburdened with travel to reach one. These many subdivided courts have been free to divide cases as they please, often leaving a single judge to hear every case in a specific division. Thus, judge-shopping; getting the partisan judge you want to hear a case and hand down a partisan, policy-driven ruling by making sure the case is filed in that judge’s jurisdiction.
Along comes the Judicial Conference – a quiet, unobtrusive group that sets policy for the federal judiciary – with a March 2024 initiative to push back against partisan judge-shopping with an initiative to oversee the assignment of policy-challenging cases to partisan judges in the federal courts, by openly randomizing the assignments. Immediately, McConnell and his allies – in this case, GOP Senators Thom Tillis and John Cornyn – rose up in protest, charging the Judicial Conference with “partisan” meddling (the irony is palpable).
The Judicial Conference’s initiative strikes at the heart of McConnell’s mission – subverting the Constitutional law-making process with a partisan back door. Randomizing the assignment of cases to judges will greatly reduce the instances of GOP judges hearing challenges to Democratic policies (and vice versa). The Conference’s efforts will, by definition, restore balance and reduce partisanship in the federal courts. No wonder McConnell is pushing back.
Though McConnell, whose health is compromised, has stated that he will complete his sixth term in the Senate, he is soon stepping down as Minority Leader (at this writing, May 2024). But the damage is done; his judges are in place, and will remain in place, potentially, for decades.
And that’s not the worst of it. McConnell’s exit is imminent, but his greatest feat is now enshrined in the American story: despite his emphatic denouncement of Trump’s attempt to remain in power by way of the January 6 insurrection - “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it.” - he spoke those words immediately following his vote to acquit Trump in the former president’s impeachment trial.
Had McConnell and his allies voted to impeach, Trump would have been barred forever from federal office – and we would not face the nightmarish confrontation to come in the Fall of 2024.
That’s McConnell’s America. Get used to it; despite his departure, it isn’t changing anytime soon.
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