McTurtle Supreme Court test

McConnell faces Supreme Court test like no other

Democrats charge the Kentucky Republican with hypocrisy and obstruction on a mega-scale.

By John Bresnahan

Senate Majority Leader Mitch McConnell has been been involved in Supreme Court nomination fights going back to when Richard Nixon was still in the White House.

But the 74-year-old Kentucky Republican now faces a nomination struggle unlike any he has taken part in before, and the stakes couldn’t be higher — for him, the Senate, the White House and the Supreme Court. McConnell is trying to prevent a sitting president with 334 days left in office from naming a replacement for the late Justice Antonin Scalia, an unprecedented assertion of authority by the Senate and one that could alter the balance of power between the White House and Capitol Hill.

McConnell also wants to leave a Supreme Court seat vacant for at least a year — potentially as long as 15 months or more — an extraordinary move that would leave the panel with only eight justices for the longest period since the Nixon era.

Democrats are already crying foul, labeling McConnell “the greatest hypocrite ever” and an “obstructionist,” while vowing to make the GOP pay a heavy price in November. Progressive activists have begun to target him and vulnerable Republican incumbents with TV ads and protests back in their home states, believing they can make the penalty so high for refusing to take action on any nominee from President Barack Obama that McConnell and Republicans must back down.

However, to think McConnell is going to cave in this struggle is a serious misread of the Kentucky Republican, according to those closest to him. McConnell sees this faceoff as an existential fight for the Senate Republican majority. In his mind, Republicans must block Obama from getting a third nominee onto the Supreme Court — potentially shifting the liberal-conservative ratio of the panel for a generation — or there really is no need to have a Senate majority in the first place.

For McConnell, the gamble of risking his majority at this point makes sense. To allow another Obama appointee on the Supreme Court could definitively change the trajectory of the entire judicial branch of government. And there’s a chance a Republican might win the White House in November, meaning that wouldn’t happen. However, even in a worst-case scenario, with a Democrat taking the White House and Republicans losing their Senate majority, McConnell would likely still control more than 40 Senate votes and have a huge say in who eventually replaces Scalia. While he is unlikely to be able to completely block a liberal from getting on the court in that case, McConnell will have a say in what kind of liberal it is.

“If Democrats are pushing all their chips into the middle of the table on the prospect of McConnell caving to political pressure, they’re going to leave the White House in nine months broke and confused,” said Josh Holmes, McConnell’s former top aide and campaign manager. “They may as well start boxing up their belongings so they can get something accomplished before the moving man comes.”

In addition, McConnell knows the conservative base would never forgive him or other Senate GOP leaders if they were to allow Obama to push through a nominee. Tea party activists already loathe McConnell and always will. While he views these critics as gadflys who have no insight into national policy issues or a serious plan for governing the country, they can cause problems for him and the Senate GOP leadership, especially in an already volatile election year in which an erratic New York billionaire with a checkered history is his party’s front-runner for the presidential nomination.

For once, McConnell’s views are in alignment with the most hard-core elements of the conservative base. A conservative group, the Judicial Crisis Network, has already announced it will run TV ads urging McConnell and other Republican senators to hold the line against an Obama nominee, and there is no doubt millions of dollars will be poured into this fight by both sides.

There are two other factors that play into McConnell’s position: Senate Democrats’ decision to invoke the “nuclear option” in November 2013 to eliminate filibusters on most presidential nominees (excluding Supreme Court picks); and Obama’s use of a recess appointment to fill three vacant posts on the National Labor Relations Board in 2012.

Although the Supreme Court later ruled Obama’s NLRB action unconstitutional, the moves by Democrats — brought on by what they called a “reckless and relentless” drive by Republicans to derail Obama’s ability to govern — infuriated McConnell and helped convince him that the risks of this Supreme Court stall are worth the potential downside. While Minority Leader Harry Reid (D-Nev.) and Sen. Chuck Schumer (D-N.Y.), Reid’s heir apparent, have predicted that McConnell will eventually back down and allow a confirmation hearing and vote, Republican insiders say these comments have only strengthened McConnell’s will to stand firm.

McConnell and Judiciary Committee Chairman Chuck Grassley (R-Iowa) have already signaled they are willing to do whatever it takes to block Obama’s expected nominee.

“No one disputes the president’s authority to nominate a successor to Scalia, but as inconvenient as it may be for this president, Article II, Section 2, of the Constitution grants the Senate the power to provide, or as the case may be, withhold its consent,” the two Republicans wrote in a joint op-ed in The Washington Post. “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most recent national election, who should be afforded the opportunity to replace Justice Scalia.”

For their part, Senate Democrats will easily be able to play the “hypocrisy card” against McConnell. He has argued the exact opposite position when Republicans had the White House and he was pushing for a vote on judicial nominees, including Supreme Court hopefuls.

In January 2008, the final year of President George W. Bush’s term in office, McConnell complained that too many judicial posts were vacant because of Democratic opposition to Bush’s choices. While there was no Supreme Court fight at that time, McConnell’s comments are being used as political ammo by Democrats now.

“We should also be able to agree that too many judicial posts have been left empty too long,” McConnell said on the Senate floor on Jan. 22, 2008. “But we cannot confirm judges if they don’t get hearings. And since last summer, Democrats have allowed only one hearing, … on a circuit court nominee. Compare that with Senate Republicans in 1999, who held more hearings on President Clinton’s nominees in the fall of that year alone than Democrats allowed this president all last year. This pattern is neither fair nor acceptable.”

In a July 2005 appearance on Fox News, McConnell was even more blunt on Senate’s role in evaluating Supreme Court nominees.

“Our job is to react to that nomination in a respectful and dignified way, and at the end of the process, to give that person an up-or-down vote as all nominees who have majority support have gotten throughout the history of the country,” McConnell said. “It’s not our job to determine who ought to be picked.”

This is McConnell in 1986: “Under the Constitution, our duty is to provide advice and consent to judicial nominations, not to substitute our judgment for what are reasonable views for a judicial nominee to hold.”

Perhaps most damning for McConnell are these lines from a 1970 Kentucky Law Journal article he wrote. McConnell was elected to the Senate in 1984, but he has cited the article in floor speeches since then.

“The president is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform,” McConnell stated. “After all, if political matters were relevant to senatorial consideration it might be suggested that a constitutional amendment be introduced giving to the Senate rather than the president the right to nominate Supreme Court justices.”

Grassley — like many senators in both parties — is vulnerable to the hypocrisy charge on judicial nominations as well.

“The Senate has never stopped confirming judicial nominees during the last few months of a president’s term,” the Iowa Republican said in July 2008.