Supreme Court Justice Brett Kavanaugh’s confirmation was among the most vicious in the US Senate’s history. Kavanaugh’s presence on the bench, given his questionable judicial temperament and the polarized nature of his confirmation, has put the Supreme Court’s non-partisan standing in jeopardy: the Court will tilt towards the right for generations to come. This rightward shift in federal judiciary can be tied back to the efforts of Senate Majority Leader Mitch McConnell.
McConnell’s actions regarding judicial nominations have degraded Senate norms, as he and Senate Republicans have successfully tipped the ideological balance of the judicial system in their favor. By blatantly bolstering the influence of the prevalent conservative ideologies in the judiciary system and limiting minority leftist ideologies, McConnell has done extreme damage to both the Senate and the courts.
The Erosion of Senate Norms
McConnell’s actions have eroded the Senate’s function of advise and consent. According to the Constitution, the Senate is supposed to serve as a check on the president’s power to appoint nominees. Instead, McConnell has used his power as Majority Leader to manipulate confirmation hearings to his (and the current president’s) ideological advantage.
During the Obama presidency, McConnell blocked many of his judicial nominees through filibusters and required Senate bills to reach a supermajority threshold (sixty votes rather than fifty) before passing. Harry Reid (D-NV), who was the Majority Leader from 2007–2015, remarked that “During the time that President Obama has been president, he's had sixteen filibusters against his nominations. During the entire history of this country, the country, there's only been twenty." Obama only managed to have three appeals court judges confirmed during his first year of office as a consequence of McConnell’s filibustering.
In contrast, under the Trump administration, McConnell has been confirming nominees with incredible speed, especially considering the narrow majority the Republicans held in the Senate prior to the 2018 midterm elections. As of November 2017, the Senate had confirmed eight appellate-level judges. In the first seventeen months of Trump’s presidency, thirty-nine federal judges were confirmed, while only twenty-four federal judges were confirmed during Obama’s first seventeen months as president. McConnell has used his political leverage as Senate Majority Leader to push forward on Trump’s judicial nominations—as the Senate Minority Leader early on in the Obama presidency, he did the exact opposite.
While national coverage of the Kavanaugh confirmation has focused on the Republican Party successfully establishing a 5–4 conservative majority on the Supreme Court, it is crucial to remember that most cases are ruled on before reaching the Supreme Court. Out of the over seven thousand cases it is asked to hear each year, the Supreme Court only hears approximately one hundred to one hundred fifty of them. Lower federal courts, such as the twelve Circuit Courts of Appeals and the Federal Circuit Court, are the final decision-makers in thousands of cases. Upon becoming Senate Majority Leader in 2015, Mitch McConnell has been hard at work reshaping the entire federal judiciary into a more robust bastion of conservatism.
McConnell has applied his unorthodox tactics to Supreme Court nominations as well as Obama’s lower court appointments. Many Democrats bitterly remember how McConnell refused to grant even a hearing to Obama’s third Supreme Court nominee Merrick Garland in 2016, hoping to leave the nomination open for the next Republican presidential candidate. McConnell himself has said that "one of my proudest moments was when I looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.’" McConnell and other Senate Republicans hoped that an open seat on the Supreme Court would also incentivize the Republican base to turn out and vote for both Republican Congressmen and a Republican president.
McConnell’s gamble has paid off. Even though Trump is far from McConnell’s ideal Republican president, he is still a Republican president who will consistently nominate strongly conservative judges. For a Senate Majority leader hellbent on controlling the judiciary, Trump meets that minimal requirement, which is why McConnell’s Senate Republicans have remained, for the most part, united with regards to making judicial appointments.
To confirm Neil Gorsuch to the Supreme Court, McConnell ended filibusters for Supreme Court nominees. Some may argue that the Democrats started this trend when they held the majority by changing the Senate rules to prohibit filibusters for judicial nominees on the lower federal courts. However, the Democrats changed the rules because McConnell had been abusing the power of the filibuster to delay Obama’s nominees. Harry Reid commented in 2013 that while he (at that point) had been the Majority Leader for the same length of time that Lyndon Johnson was Majority Leader, Johnson only experienced one filibuster while Reid had experienced four hundred twenty. McConnell also passed Gorsuch through via a nuclear vote along partisan lines, meaning that he only needed a majority of the Senate’s approval rather than sixty votes to break a Democrat filibuster.
Furthermore, rather than granting Merrick Garland a hearing and then gathering the necessary votes to ensure that he not be confirmed (a proper example of advise and consent), McConnell refused to give him a hearing at all. McConnell’s handling of Garland’s nomination was unprecedented—it left Justice Scalia’s seat open for over a year. But it was also reprehensible because Garland deserved a hearing. He was not some joke candidate put forth by a lame-duck president: not only was Garland the chief judge on the US Court of Appeals for the D.C. Circuit, but he is also a moderate who was widely praised by Republicans. In fact, commentators have observed that Obama seemed to nominate Garland over a more “progressive” candidate to appease the Senate’s Republican majority.
Garland is far from the only target of McConnell’s political manipulations. Last spring, he cancelled the confirmation vote for an appeals court nominee twice, waiting for the “right moment,” at which point he called a quick vote to confirm the nominee. Now he has rushed Brett Kavanaugh’s confirmation, considering it more important to ensure a conservative majority on the Supreme Court before the midterm elections than to protect the Court from being tainted by an untrustworthy and ill-suited Justice.
The Consequences of Norm Erosion
McConnell’s abuse of Senate norms has damaged the character of the entire chamber. Filibusters were an essential tool to ensuring that the Senate’s minority voices were not squashed; they were also essential to ensuring that all concerns about any given nominee are heard and addressed. Thus, filibusters also, if indirectly, contributed to the ideological balance of the courts. Furthermore, establishing the nuclear vote as the norm erased the requirement of bipartisan approval that led to an apolitical Supreme Court. It should be noted that Obama’s Supreme Court nominees did not need a nuclear vote to be confirmed (Sotomayor was confirmed with sixty-eight votes, Kagan sixty-three votes), while Trump’s nominees certainly did (Gorsuch by fifty-four votes, Kavanaugh fifty votes).
The result of McConnell’s actions is a judiciary that leans to the right. By plowing through and pushing Kavanaugh onto the Supreme Court (the most unpopular nominee in modern American history), McConnell has given Trump two SCOTUS justices in nearly two years—equal to the number of Obama-appointed justices in his entire eight years as president. Both are in their early fifties and could affect Supreme Court cases for the next three decades. The oldest two justices on the Supreme Court are left-leaning as well, so Republicans could gain another seat under Trump.
McConnell has always done what is politically expedient, especially when it comes to judicial nominations. When Democrats planned to instate the nuclear vote years ago, McConnell deemed such a vote unnecessary and a “mistake for the long-term future of the Senate and the country.” Obviously, McConnell’s concerns evaporated when he utilized the nuclear vote to confirm Gorsuch in 2017. In 2016, he justified the obstruction of Merrick Garland’s nomination with the “Biden rule” (no Supreme Court nominations during an election year), but had no problem confirming Kavanaugh to the Court less than two months before the midterm elections. Republicans felt that it was important to take time in filling Scalia’s seat in 2016, but were emphatic on the urgency of filling Kennedy’s seat in 2018. Their actions, under McConnell’s leadership, illustrate that they value ideological support in the judiciary over their constitutional responsibilities.
In filibustering Obama’s nominees, McConnell has, more so than any other Majority Leader before him, endangered the ideological balance of the judiciary. Ideological balance is important to a just court because federal judges and justices are not elected by the people and they receive lifetime appointments. So long as the courts remain ideologically balanced, both sides of the aisle can have their say in the interpretation of the law. If the courts are not ideologically balanced, the dominant side can advance rulings predicated on political ideologies rather than a proper reading of the Constitution. While it is understandable that a conservative senator would want to confirm conservative judges, the overall balance of the judiciary is crucial to providing some semblance of a just court.
McConnell’s desire to place conservatives on the court has clearly usurped the priority of having a legitimate and balanced judiciary. Kavanaugh is a clear example of Republicans’ abandonment of their regular duties. Besides the credible accusations of sexual assault, Democrats are worried that Kavanaugh is a Republican first and an impartial judge second. Their concerns are not unfounded: in his testimony, Kavanaugh expressed open vitriol towards liberals in general, accusing them of blocking his confirmation due to their resentment of Trump. Kavanaugh was clearly upset, yet still appeared more partisan than any other modern Supreme Court nominee, including Clarence Thomas, who was also subjected to hearings following accusations of sexual harassment. Despite these mounting concerns over Kavanaugh’s record, the accusations levied against him and his overall temperament, McConnell pushed him through.
The damage McConnell has done will long outlive him. Many of the conservative judges McConnell has put onto the federal courts, including Gorsuch and Kavanaugh, are relatively young, meaning that they will continue to rule on critical issues in the United States for years. The Republicans have won a battle of paramount importance—their victories in the Senate are bolstered by their retention of the Senate majority, though losing the House is a significant drawback. McConnell’s success in retooling the federal judiciary as his party sees fit cannot be instantly undone by electoral defeats.
McConnell’s legacy will forever be characterized by the disingenuous means he employed in judicial nominations. His actions have eroded the Senate norms that were put into place to help maintain a just judicial branch. As the interpreters of the Constitution and of the law, the judiciary holds sway over issues that impact every American. The justice system now seems like more of another arm of the GOP, which should be a frightening thought for citizens who value the United States’ status as a nation of laws, not of individuals.
There is no clear or swift way to repair the ideological balance of the judicial branch. However, the American people can help to revitalize the legislative branch. Those senators who have tampered with norms, like filibusters and the supermajority, should be held accountable. The Democratic Party winning the House in the 2018 midterms is a good start, but more must be done in the Senate. Americans should elect Senators who will reinstate that chambers’ norms so that future judicial nominations undergo a proper confirmation process that features bipartisan approval.
Senator Henry Clay (from Kentucky like McConnell, coincidentally), was known as “the Great Compromiser” for brokering bipartisan agreements. Mitch McConnell, unfortunately, is “the Great Eroder”—and the United States must restore what it has lost during his tenure.
Opinions expressed in this article are not necessarily reflective of The Gate.