The open spot on the Supreme Court places a spotlight on the constitutional role of a politician known for being unprincipled and caring more about getting and staying in power than about achieving the small-government agenda of the right—but who at least is being decisive and effective and getting something done that no one has managed to do before.
No, I’m not talking about Donald Trump, who will have the power to appoint a new justice to the spot opened by Anthony Kennedy’s retirement. I’m talking about Mitch McConnell, whose leadership of the Republican majority in the Senate has given him the power to confirm Supreme Court appointments or let them die in limbo. McConnell is notorious as the embodiment of the dreaded Republican Establishment. He has the bad reputation of someone who clings to power no matter whether he delivers or fails to deliver on any of his party’s actual agenda—like, say, repealing Obamacare. But he has delivered on one big thing. He delivered on the Supreme Court.
Back in 2016, you may recall, President Obama nominated Merrick Garland to replace Justice Antonin Scalia, an appointment that would have tipped the ideological balance of the court. But McConnell sat on the nomination for nearly eight months, on the grounds it was totally wrong to fill a Supreme Court vacancy right before an election. To be honest, I didn’t think he could do it, but he brassed it out, and that’s why Merrick Garland never became a Supreme Court Justice and Neil Gorsuch did.
Now McConnell has to turn around turn around and rush a Supreme Court nominee through the Senate in less than four months before this year’s midterm congressional election—before the point when the Republicans might lose their Senate majority. If we need someone who can set a completely hypocritical standard like this and just stare everyone down and do it anyway—well, I believe Mitch McConnell is our man. I have faith in turtle power.
So does this make the case that Mitch McConnell and the GOP establishment were worth it all along? I ask that because a lot of people, including some of my colleagues, are saying that’s the case for Donald Trump. We might have complained about Trump, we might not like his style, but he has so far delivered with Gorsuch and he looks likely to deliver another nominee constitutionalists will like, so that makes it all worthwhile.
But if that’s true for Trump, is it also true for McConnell? The obvious irony is that Donald Trump campaigned against the Republican establishment and against McConnell. He has derided them as a bunch of losers who never get anything done, which is why we had to overrule the establishment’s preferences and put Donald Trump in charge so he can do the exact opposite. But if the argument is that delivering two Supreme Court justices makes Trump worthwhile, doesn’t that also justify his counterparts in the hated GOP establishment?
The argument in both cases overstates the power and reliability of a conservative Supreme Court. After all, we’ve had a five-justice conservative majority on the court since 1971, and this hasn’t restrained the size and power of government. In recent decades, Anthony Kennedy was frequently the odd man out, the unreliable vote whose conservatism was counteracted by idiosyncratic reasoning that often seemed to vary with his mood. But sometime it wasn’t him. Sometimes it was John Roberts, as in the Obamacare ruling, and sometimes it was all of the conservative justices, as in the recent Internet sales tax ruling.
Perhaps more to the point, the power of presidents and Congress to approve judges is just one small part of their authority, and they haven’t been doing all that well with any of the more direct exercises of their constitutional powers. They haven’t reined in spending, reduced the debt, or reformed entitlements, leaving untouched the key factors driving us toward fiscal doom. These are problems that both the GOP establishment under McConnell and the current president have pushed off to another Congress and another administration.
When it comes to judging whether Trump’s election was worth it, I like to keep in mind the parable of the Zen master and the little boy: we’ll see. He’s only two years in, and a lot of other things are going to happen that will define his legacy and his impact on the future of the Republican Party and the small-government cause.
But McConnell is an instructive case, because given his age he is likely at or near the end of his career, and he’s had enough years in the Senate and as majority leader for us to judge his record as a whole. What we can see is that he presided over decades of out-of-control spending and increasing debt, with no real attempt to reform or alter the entitlement state and no attempt to rein in the regulatory power of the federal government and the administrative state. But he always campaigned for reelection and to keep his position as a leader of the Senate based on an argument that can be summed up in two words: “but judges.” When you consider that the main role of judges is as a check on the decisions of the legislature and the president, this seems like kind of a self-cancelling argument. We should overlook Congress’s misuse of their power because they appointed good judges who will limit abuses of power by Congress—the same abuses that are OK because they put in the right judges.
Sure, this new Supreme Court appointment is a triumph for Mitch McConnell and I suppose for Donald Trump, too. But does it outweigh all the other damage they have done and are going to do. Is giving us a good Supreme Court sufficient repayment for giving us a lousy Congress? I wouldn’t want to try to make that case.