WASHINGTON – I experienced an epiphany over the past few weeks that may seem counter-intuitive but nonetheless is the only reasonable explanation for Republicans, especially Sen. Mitch “Root-‘n-Branch’’ McConnell, marching into the Valley of Death to assure that U.S. Circuit Judge Brett Kavanaugh is confirmed for a seat on the Supreme Court.
McConnell, of Louisville, and others, particularly the right-wingers the GOP caters to, have made the political decision that holding a workable majority on the high court is preferable to maintaining the majority in the House and Senate, at least for the time being.
They would rather own the whole kit and kaboodle, of course. But given their druthers, holding a 5-4 majority, potentially for a generation, is better than controlling a Congress that is considerably more ephemeral.
Given that, the Senate Republican leadership, led by McConnell, will do anything – and I do mean anything – to make it happen, including shoving the once highly respected Supreme Court down into the gutter.
The Kavanaugh nomination is in jeopardy for a number of reasons, not the least of which are claims by three different women that he either attacked or sexually harassed them – claims he denies.
A POLITICO/Morning Consult poll showed that the Kavanaugh appointment isn’t popular with the public. Only 34 percent expressed support for the judge, 37 percent opposed and the remainder offered no opinion.
Kavanaugh is particularly unpopular among women, with 39 percent in opposition. While this may or may not bode well for Kavanaugh, it certainly places Republican prospects in the Nov. 6 election in a sensitive spot. The GOP is expected to lose the House and its hold on the Senate is growing more tenuous than one might expect.
Regardless, McConnell persisted and remains intent on keeping Kavanaugh on the fast track despite any consequences. Back in 1937, when FDR was moving ahead with his court-packing plan, the chairman of the Senate Judiciary Committee, Sen. Henry T. Ashurst, D-AZ, said the motto of his panel was “No haste, no hurry, no waste, no worry.’’ Ol’ Root-‘n-Branch has disregarded that dictum, just as he has disregarded much of what once made the upper chamber the world’s greatest deliberative body since gaining control.
There are reasons why McConnell is rushing in where wise men fear to tread. And it’s ultimately all about power.
Majorities in the House and Senate, at least in recent history, tend to come and go. The Democrats maintained control of the lower chamber for decades until 1995 when Republican Newt Gingrich, armed with the Contract with America, took the gavel. That lasted 12 years until Democrats, led by current House Democratic Leader Nancy Pelosi, of California, regained the majority. She was Speaker for four years before Republicans once again wrested control. Now it could be the Democrats turn again.
Senate fluctuation is even greater, with control jumping seven times since 1995, with the upper chamber currently being led by the skin of the GOP’s teeth.
The Supreme Court is more stable. As a result of lifetime appointments, justices often serve for decades. Jimmy Carter, during his entire four years as president in the 1970s, never had an opportunity to make a Supreme Court appointment because all nine justices simply hung on. Justice Clarence Thomas, the senior member of the current court, has served for going on 27 years and has offered no indication he intends to retire. The late Justice William O. Douglas served for more than 36 years.
With the retirement of Justice Anthony Kennedy, appointed by a Republican, President Ronald Reagan, who served as something of a swing vote, the high court is split between four liberals appointed by Democrats and four conservatives appointed by Republicans.
Kavanaugh’s confirmation could give Republicans a majority certainly for the foreseeable future and perhaps a generation. Justice Neil Gorsuch, appointed by “President’’ Trump (ugh!) in 2017 is only 51 while Kavanaugh is 53. Both could be expected to serve 20 years.
Chief Justice John Roberts is young for the position at 63.
While it’s true that the other Republican appointees, Thomas and Justice Samuel Alito are eligible for Social Security at 70 and 68 respectively, they are kids compared to two of the liberals on the bench, Justice Ruth Bader Ginsburg, 85, and Justice Stephen Breyer, 80. So if any seat opens up during the final two-plus years of a Trump presidency, it is likely to be that of a Democratic appointee, providing the GOP with an opportunity for what they call in baseball an insurance run.
So the odds are pretty good Kavanaugh can provide Republicans/Conservatives with control of the Supreme Court for a couple of decades. Retaining Congress and the presidency, where those icky voters get a say, is significantly shakier.
So, why is it more important for Republicans to control the Supreme Court than Congress?
The high court gets the final say. On just about everything. It can’t pass laws, like Congress, or regulations, like the White House (although it occasionally finds ways around those barriers, consider the same-sex marriage ruling), but it can tell the other branches to go peddle their papers elsewhere as long as the decision is rendered within the confines of the U.S. Constitution, a document that sometimes seems to have been written on a rubber band rather than parchment.
Conservatives, by their very nature, want smaller government, which generally translates into the adoption of fewer far-reaching laws when they hold the power. Social Security, Medicare, Obamacare all came from Democrats, for instance. As William F. Buckley famously noted, a conservative “stands athwart history, yelling Stop.’’ Controlling a court able to slam the door on what they consider progressive nonsense is more heartening to them as watching Mr. Bill become law.
What’s more, the Supreme Court can delve into matters important to conservatives that don’t directly involve the other branches of the federal government, especially in cases involving religious freedom liked the infamous Hobby Lobby decision that exempted closely held for-profit corporations based on the owner’s religious convictions.
Assuming all that is true, why are conservatives, led by McConnell going to the mat on Kavanaugh, who is a dreadful candidate for the job. He is the target of at least three separate claims of sexual abuse. He has in the past misled Congress (meaning he lied) about his involvement as an official in the President George W. Bush White House regarding a federal judgeship for William Pryor. He hemmed and hawed during his confirmation hearing and there’s no reason to believe he’s a Louis Brandeis when it comes to interpreting the law.
But all that misses the point. Kavanaugh is a purely political appointment to a court that’s supposed to leave politics at the doorstep. He assisted Ken Starr, aggressively so, as part of the Office of Independent Counsel investigating the dubious actions of then-President Bill Clinton, a Democrat, urging he be impeached. He then worked for Bush in the 2000 election voter recount in Florida – hanging chads and all that – before joining the Bush administration as White House staff secretary.
In other words, Kavanaugh wasn’t selected for his great legal mind. He was picked because he’s a true believer unlikely to disappoint. He’s no David Souter, appointed by Bush I, John Paul Stevens, appointed by Gerald Ford, or William Brennen, appointed by Dwight Eisenhower, alleged conservatives who wound up in the liberal wing.
Kavanaugh can be “trusted,’’ even if he doesn’t know a tort from a hole in the ground. And McConnell, ol’ Root-‘n-Branch, will do whatever it takes to get him on the bench, no matter how scurrilous or underhanded it turns out. Because that’s the way Mitch is.
McConnell has made his intent clear. The nomination was placed in jeopardy last week when Christine Blasey Ford came forward to claim that Kavanaugh, as a 17-year-old, attacked her at a party, tried to rip her one-piece bathing suit off and clasped his hand over her mouth to stifle her screams. The Republican-led Senate Judiciary Committee, reluctantly, began looking into the matter and have Ford provide testimony.
What they finally came up with was insulting – no witnesses beyond Ford and Kavanaugh, no FBI investigation, limited questioning and a scheduled vote on the nomination the following day. This is the Republicans’ way of saying they take a woman’s claim of abuse seriously.
Mitch quickly assured his conservative base that the incident wouldn’t amount to a bag of shells, essentially employing a line used by Judge Roy Bean, who once told a defendant, “You’ll get a fair trial followed by a first-class hanging.’’
“Here’s what I want to tell you,” McConnell announced at a summit for social conservatives after Ford went public. “In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. So, my friends, keep the faith. Don’t get rattled by all this. We’re going to plow right through it and do our job.”
Gotta love that. “Plow right through’’ before even hearing the woman’s testimony. Yeah, that’s Mitch alright.
Norm Ornstein, the respected political analyst for the American Enterprise Institute said it best: “Nobody – nobody — has done more to destroy the fundamentals of our political system in the past decade than Mitch McConnell.’’
And now he has the Supreme Court in his crosshairs.
First, he ignored former President Barack Obama’s nomination of U.S. Circuit Judge Merrick Garland for the Supreme Court replacing the late Antonin Scalia. There were no hearings, no interviews, no vote. Just stonewalling. The seat went to Gorsuch.
Now this, belittling a woman who claimed she was abused at the hands of the nominee, pushing forward after a show trial, matching him up with Clarence Thomas, who was also accused of sexual harassment during his confirmation hearing, all just to please his right-wing constituency regardless of the damage it does to the institution.
Mitch McConnell is a sleaze.
The NKyTribune’s Washington columnist Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.