SCOTUS: A Court With Authority But Without Credibility
How Mitch McConnell destroyed America’s faith in the Supreme Court
The leaked draft of the Supreme Courts ruling on Roe v. Wade has ignited a firestorm of national debate related not only to the apparent ruling, but also about the very legitimacy of the Court itself. Many fear that this conservative court will move on from Roe and overturn other rights including the right to same sex marriage and contraception.
Beyond this however, many are questioning how much credibility this Court has to begin with. Recent polling (Yahoo News/YouGov) suggests that over half of Americans have little or no confidence in the Court. These doubts were, of course, inevitable given the rabid partisanship displayed by then Senate Majority Leader Mitch McConnell prior to the confirmations of Justices Gorsuch, Kavanaugh and Coney-Barrett.
There were three significant steps by McConnell and Senate Republicans in the engineering of the current Court. First, following the death of Justice Antonin Scalia in February of 2016, Leader McConnell declared that President Obama’s Supreme Court nominee Merrick Garland would not even receive a hearing. To justify this maneuver McConnell made the unprecedented claim that a nominee must not be considered during an election year because “the American people” should have a voice in who fills an open seat. Of course this stance ignored the obvious that the American people had already decided that President Obama should have this privilege for the next four years when they re-elected him in 2012.
McConnell held that seat open until after the 2016 election. When Trump won he of course nominated Neil Gorsuch for the vacancy. But here McConnell struck again. Realising that a conservative like Gorsuch was unlikely to receive the 60 votes required for confirmation, the Senator and his fellow Republicans proceeded to change Senate rules for Supreme Court nominees to now require only a simple majority for confirmation. Gorsuch was thusly confirmed by a vote of 54-45. In 2018 the Senate went on to confirm Justice Kavanaugh by a 50-48 margin.
But McConnell wasn’t finished yet. In September of 2020 just weeks before the election, Justice Ruth Bader Ginsburg passed away. Abruptly and quite ridiculously, the just recently employed rationale that an open Supreme Court seat must not be filled during an election year was now null and void.
The new standard was that a Justice can be rushed through hearings and confirmed even after voting for a new President has already begun. Trump nominated Amy Coney-Barrett to the court on September 26th. She was hastily confirmed by a 52-48 vote on October 26th.
The current Court’s questionable credibility is in direct proportion to the lengths that Senator McConnell went to to carefully engineer its’ composition. This has ensured that every ruling made by this Court is suspect and subject to review and possible overturn at the earliest possible date.
In making such a farce of Supreme Court nomination proceedings over the last few years, McConnell has severely eroded the public’s trust in the institution. It would be well if he and his probable co-conspirator Leonard Leo of the Federalist Society never again have any involvement in appointing any justice to any court. Perhaps in time faith in our system of justice may recover.
Addendum: Senator McConnell absurdly invoked something Republicans referred to as the “Biden Rule” to justify not holding a hearing for Merrick Garland after President Biden nominated Garland in 2016. This refers to comments then Senator Biden made in 1992 suggesting that if a Supreme Court seat were to come open before the November election that then President Bush should delay nominating a replacement until after the election. Biden suggested that a confirmation hearing in the heart of that year’s election season would be divisive and unfair to all parties involved.
Biden did not however say that the Senate would not act on a nomination at all, which was the position that McConnell took in 2016. He advised instead against holding any potential hearings until after the election. This would have allowed well over two months for hearings to occur before the 1993 Presidential inauguration. Under McConnell, Justice Coney-Barrett went from nomination to confirmation in just 30 days. Ultimately, no Supreme Court vacancy developed in 1992 regardless.