February 13th, 2016. Associate Supreme Court Justice Antonin Scalia is found dead in his home in Texas at age 79. A conservative force on the Supreme Court, Scalia’s death leaves a delicate ideological balance on the Court, with a four justices who lean towards the left and four justices who lean towards the right. The political importance of capturing this swing vote—the void left by Scalia—adds another level of dynamism to a tense presidential election cycle.
Within hours of Scalia’s death, Senate Majority leader Mitch McConnell announces that President Barack Obama should not nominate a new justice, and instead let “the people” decide in November. McConnell is taking a big risk; with only three candidates left in the Republican primary, he’s hoping to gin up support from the conservative base to unite behind whoever the party’s nominee may be, even if it is the more controversial Donald Trump.
McConnell’s statement sets the tone for the entire ensuing nomination process. With the ball now in his court, Barack Obama has some complex political calculus on his hands. His options are either to nominate someone so ideologically reprehensible to the Republicans that they will never be confirmed by a Republican Senate, or strike a moderate path, hoping that even in a polarized election year, the Senate would not block a qualified justice for eight straight months. The former option comes with the promise of a motivated voter base; the latter is grounded in the optimism that some semblance of political norms still exists.
Obama calls McConnell’s bluff. On March 16th, 2016, banking on McConnell’s inability to hold his party line from March until November, he nominates Merrick Garland, an extremely qualified, politically centrist circuit court judge. Every day that Garland is sitting in limbo, Obama assumes, will be another day Democrats own the news cycle. The pressure will mount, and McConnell will be forced to cave in, cementing Garland’s place on the Supreme court for years to come.
In his assumptions, however, Obama gravely overestimates the sanctity American citizens place on congressional norms. With congressional approval ratings hovering just below those of cockroaches and root canals, obstruction in the Senate is just another tick in a box, and another headline overlooked by many Americans. This causes Obama’s strategy to backfire enormously. Garland is seen as a moderate pick, a concession to those on the right. Liberal enthusiasm for Garland simply is not there. Of course there is outrage on the left, but it never spread across the aisle; Obama’s gambit changes no gridlock, and McConnell is perfectly content to block Garland until the election.
By November, McConnell’s strategy is working extremely well. Garland is still nowhere close to a confirmation hearing, and the Supreme Court is becoming a focal point of the 2016 presidential election. Although successful in his holdout up until this point, McConnell’s strategy is now contingent upon a seemingly impossible event in American politics: the election of Donald Trump as President. If Hillary Clinton were to win the election, Republicans would be much better off with Garland, a moderate, than Clinton’s nominee. Additionally, although McConnell has successfully held off Garland for the eight months previous, blocking a nominee for four years would be completely uncharted territory.
Although contingent upon Trump’s election, McConnell’s strategy is in no way divorced from it. In fact, by making the Supreme Court seat a paramount issue in the 2016 election, McConnell is instrumental in consolidating conservative support behind Trump and his often anti-establishment views, coercing conservatives who would normally distance themselves from Trump to support him for the sake of the seat. Given this, and the fact that conservatives almost universally loathe Hillary Clinton, Trump becomes a palatable option for fringe Republicans who have been alienated by his theatrical rhetoric.
Once Trump was elected and nominated his own justice, Neil Gorsuch, Senate minority leader Chuck Schumer reached into the McConnell bag of tricks and vowed obstructionism against Gorsuch. With a majority in the Senate, this would have worked. Blocking a Supreme Court nominee was now an accepted part of the inner workings of the Senate, with a successful precedent. Except Schumer didn’t have a majority. The Democratic filibuster of Gorsuch just resulted in a Senate rule change: the “nuclear option,” where the bar for confirmation was lowered from sixty votes to fifty-one.
McConnell was ready for resistance, and did not hesitate to change the Senate procedural rules. Because Gorsuch was such a qualified, vanilla pick with a squeaky-clean record, McConnell was able to drive the narrative of the nuclear option as one of political expedience rather than ideological manipulation. He framed the Democrats as sore losers, obstructing the workings of government simply because it was the only thing they could do. Using the nuclear option to confirm Gorsuch wasn’t a move to vastly change the character of the court—it was simply a way to keep government operations working smoothly. Gorsuch was confirmed, and McConnell’s success was reinforced.
Enter Brett Kavanaugh. Confirmed to the Supreme Court on October 6th by a 50-48 margin in the Senate, Kavanaugh’s nomination was perhaps the most contentious Supreme Court battle in modern American history. His path to the Supreme Court seemed predetermined from the day he was nominated That path was paved by Mitch McConnell in April of 2017 when he used the nuclear option to confirm Gorsuch.
If Chuck Schumer and the Democrats had not mounted a futile fight against Gorsuch, Kavanaugh would almost certainly not be on the Supreme Court. Forcing McConnell to employ the nuclear option in the midst of such a heated partisan battle, with real grievances against the nominee would take the narrative out of his hands. There would be no way to paint a rule change as political expediency—McConnell’s pure ideological warfare would be outed. However, because the precedent was set with Gorsuch, the fifty-one vote rule was accepted as if it had always existed.
There is a propensity in American politics to examine the present with laser focus and ignore the counterfactual. As the news cycle becomes increasingly sensationalized with one break-through headline after another, political actors seem hell-bent on winning the current moment without examining its macro-effects. McConnell, in contrast continues to be a strategic thinker and planner. He has cleverly orchestrated the political environment we all live in today, and has been a behind the scenes architect scoping blueprints for his party’s next big political opportunity. For better or worse, this is Mitch McConnell’s America and we’re along for the ride.
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