Opinion: What Democrats could learn from Mitch McConnell

Democrats shouldn’t get too excited, though. Jackson may be one of the few remaining judicial confirmations of the Biden presidency. Last week, Senate Republican Leader Mitch McConnell repeatedly refused to answer whether he would hold hearings on a nomination if Republicans take control of the Senate in the November election.
Doing so would be McConnell’s latest ruthless violation of government policy, and one that will cause the public to lose even more confidence in the political independence of our courts. However, given that McConnell has been rewarded every time he has blown up the drafters’ intentions, continuing to do so is perfectly rational behavior. The question for McConnell’s colleagues and the American public is whether they are willing to stop complaining about McConnell’s behavior and take aggressive action to stop it.
As the process has gotten uglier, the political parties have been the Hatfields and the McCoys, pointing the finger which side started us down a dark partisan path first. For example, Republicans are quick to argue that the conduct of Democrats during the hearings of Robert Bork in 1987 and Clarence Thomas in 1991 were the points that forever broke the confirmation process.
There is an obvious flaw in that argument. Despite any criticism the Democrats may deserve for their conduct in 1987 or 1991, at least both Bork and Thomas got hearings. Thomas was eventually confirmed to the Supreme Court. Bork was not, with six members of President Reagan’s own party voting against him.
Many are aware of McConnell’s actions decades after Justice Antonin Scalia’s death. Within hours of news of Scalia’s death, then Majority Leader McConnell issued a statement pledging not to confirm any elections that President Obama presents to the court. Far less high-profile, however, was the near-refusal by McConnell and Senate Republicans to bring a majority of Obama’s lower court nominees to a vote, confirming only two appeals court justices in the last two years of Obama in office. It was the slowest rate of judicial confirmations since Harry Truman was president.

It should surprise no one, then, that McConnell is now brazenly playing a public game of whether or not he wants to confirm Biden’s nominees if Republicans take the Senate in November. McConnell and his colleagues have been handsomely rewarded for being kind to the Constitution and Senate rules. They don’t have to stop.

In 2016, after Republicans kept Scalia’s seat open for nine months and blocked most of Obama’s other judicial candidates, President Trump won the presidency and Republicans retained control of the Senate. McConnell was again elected leader, and the Senate confirmed Neil Gorsuch for the vacant seat in 2017.

McConnell will almost certainly be chosen to lead his caucus again next year. With that history of being rewarded for his conduct with judges, why doesn’t McConnell promise, or at least hint, that he won’t confirm any of Biden’s nominees? It would be foolish for him not to.

To be clear, McConnell’s conduct, if it breaks the rules, is perfectly within the rules. The solution for Democrats, then, is to devise equally legal, but equally simple, means of removing the incentive for behavior. For example, increasing the size of the Supreme Court might be controversial, but it would serve as a check on McConnell’s aggressive blocking (both past and future) of Democratic candidates. Doing so would effectively weaken the votes of the nominees that McConnell imposed during the process.
Taking aggressive steps in response to McConnell is less about packing the courts with Democratic candidates and more about resetting the confirmation process to something closer to what the framers intended: one in which a political party in the Senate does not steal from the president one of his fundamental powers in broad daylight. After that, perhaps the parties can come together to bring some semblance of normalcy back to the process.

Like Pavlov’s dog salivating at the sound of a bell, Mitch McConnell is not to be blamed for reacting to stimuli in a predictable and natural way. It’s about time Democrats and voters get aggressive to remove the bell.

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