WASHINGTON — When House Speaker Nancy Pelosi refers to the Supreme Court as the “Trump-McConnell” court, she does not mean it as a compliment. Sen. Mitch McConnell will take it as one anyway.
“I want to thank her for confirming the obvious,” said McConnell, R-Ky. and the Senate minority leader.
McConnell is indisputably a chief architect — if not the chief architect — of the conservative court that has shaken the nation over the past week with a string of rulings on abortion, guns and religion — a trifecta of searing cultural issues.
While much of the public recoiled at the decisions and the prospect of more to come in the years ahead, McConnell, a deep admirer of Justice Antonin Scalia, saw the culmination of a personal push to reshape the court in the image of the conservative judicial icon. McConnell said his goal had been “to move us back to where Scalia would have taken us to a textualist, originalist majority. And we have that for the first time in history.”
That history-making feat came at a price: the embrace of Donald Trump. McConnell and his fellow Republicans might have had their misgivings about Trump, but they were more than willing to set aside any reservations — and Senate comity — in zealous pursuit of a reliably conservative court. Trump, however problematic, was a means to their end.
Now Trump is gone from office, but the court he shaped remains as a bulwark against progressive initiatives on such subjects as climate change, gun control, the conduct of elections and campaign finance — all areas of great interest to McConnell and ones in which public opinion often diverges sharply from his own. Even if legislation that Republicans do not like somehow manages to escape Congress, they can now look confidently to the court to take care of it.
Senate Republicans did not have to take the politically risky step of banning abortions; the court did it for them.
If all of that seems like a perverse outcome in a democracy — a court that forces policies supported by the minority on the majority of the country — McConnell says that is as it should be.
“The Supreme Court exists to protect unpopular views,” he said. “Virtually everything in the Constitution is designed to defend the minority against the majority. It is not a majoritarian institution in the sense that it needs to follow public opinion. That’s our job.”
The situation has outraged Democrats as the run of momentous rulings was a bitter reminder of the strong-arm tactics that McConnell employed to install three conservatives on the Supreme Court — and scores more on the lower courts — during the tenure of Trump, a man with whom McConnell has since severed ties.
“It is a fact that Merrick Garland should be on the Supreme Court and Amy Coney Barrett should not be, and would not be without Mitch McConnell’s shameless manipulating of the process,” said Sen. Richard Blumenthal, D-Conn.
It was Scalia’s death in 2016 that opened the door to McConnell’s norm-breaking decision to stonewall Barack Obama’s nomination of Merrick Garland for nearly a year. It was not part of the original plan, but the vacant court seat produced what McConnell described as an “unanticipated” electoral bounce for Trump, helping him win the presidency.
Through the concerted efforts of McConnell and Don McGahn, the original White House counsel for Trump, three Trump-nominated justices were then pushed onto the court, culminating with the confirmation of Barrett just days before Trump lost the 2020 election.
McConnell ruptured the traditions of the Senate to fill the seats. He blockaded Garland on the grounds that a Supreme Court opening should not be filled in a presidential election year, only to turn around four years later and rush Barrett onto the court with an election imminent.
“The inconsistency, the hypocrisy,” Pelosi said last week as she railed against the court and McConnell’s machinations. “I don’t respect that process.”
McConnell insists he did nothing untoward.
“That’s not cheating,” he said of his decision to refuse a hearing to Garland. “Sometimes we act on nominations and sometimes we don’t. This just happens to be one of the bigger ones. But it is not uncommon at all for the Senate to not give its consent to nominations.”
And, he noted, voters had the chance to deliver their own verdict on his tactics in 2016.
“That decision was there in the 2016 election for the American people to make a decision on whether they thought it was appropriate,” he said. “And in the end, they elected somebody who filled the vacancy with somebody who Democrats didn’t like.”
Despite McConnell’s satisfaction with the court’s decisions, a significant public backlash to the cases could end up denying him the chance to return as Senate majority leader next year if the tumult allows Democrats to hold on to their majority. McConnell concedes the court and its divisive rulings could be a factor in November.
“I’m confident this will be an issue in some campaigns, may not be in others,” he said, adding that he expects the election to turn primarily on inflation, crime, immigration and President Joe Biden’s popularity even if Democrats try to put the focus on the court and its rulings.
“I’m sure they will try to make it about anything else, but it is going to be a referendum on the president’s approval rating, which is in the tank, and I think it’s hard for me to see how he turns that around between now and November,” he said.
McConnell had his eye on the elections in sanctioning the bipartisan gun control legislation that the president signed into law Saturday, acknowledging after the vote that he hoped it could help Republicans with suburban voters who have abandoned the party in recent elections. Once again, his party could reap the political benefits after the court went in the opposite direction from where polls show the American public is.
Senators hardly got a chance to celebrate their rare bipartisan achievement before the Supreme Court’s decision striking down New York’s concealed carry law, which quickly overshadowed the narrow bill and raised questions about the prospects for continuing bipartisanship.
“I am angry at everyone who jammed through this conservative majority,” said Sen. Chris Coons, D-Del., who said he was worried about the prospect of the court curbing government regulations that protect Americans. “We are in for a rough time and a period of great instability.”
In the end, McConnell believes he has fostered an ascension of judges at all levels who will focus on a plain reading of legislation and the Constitution that, in the case of abortion, will return the decision-making to where he believes it belonged all along.
“The American people will now be able to weigh in on this sensitive issue,” he said, “and the democratic process will produce a result.”
© 2022 The New York Times Company
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