World·Analysis

McConnell's Supreme Court gambit is the gift that keeps on giving to conservatives

Donald Trump is poised to entrench a conservative majority on the Supreme Court that could push it further to the right for a generation or more.

With Kennedy's retirement, Trump is able to name another judge who thinks his way

Senate majority leader Mitch McConnell has plenty of reason to smile. His move to block Barack Obama's Supreme Court pick in 2016 has paid off in a big way for the Republicans. (J. Scott Applewhite/Associated Press)

U.S. Supreme Court Justice Anthony Kennedy is retiring, and so for liberals and Democrats the nightmare has arrived: Donald Trump is poised to entrench a conservative majority on the Supreme Court that could push it further to the right for a generation or more.

They've already seen what that means with this week's rulings on the travel ban, anti-abortion clinics and labour union rights. There will be more of that to come.

And they find the moment especially galling because of how it has come to pass, and that bitter history will be centre stage in the political drama that's about to unfold.

Democrats believe, with reason, that they were cheated out of a seat on the court when the last vacancy opened with the death of Antonin Scalia in February 2016. President Barack Obama was entitled to fill that vacancy and he chose Judge Merrick Garland, a political moderate of impeccable credentials.

Supreme Court Justice Anthony Kennedy announced his retirement Wednesday. That means U.S. President Donald Trump can nominate a new candidate of his choice for the highest court in the land. (Carlos Barria/Reuters)

But Mitch McConnell, the Republican majority leader in the Senate, decided that because Obama was in the last year of his presidency, the choice of a Supreme Court justice should be the prerogative of whoever voters elected as president in the November 2016 election.

McConnell refused even to hold hearings on the nomination, let alone to have a confirmation vote, until after the election.

It was a bold and, many argued, unconstitutional move.

Democrats were apoplectic at what seemed to be the Republicans' unprecedented violation of norms and the law. But some were also appalled that Obama didn't respond with equal audacity. There was plenty of scholarly advice urging him to assert that the Senate had effectively waived its right to confirm or deny the nomination and to go ahead and appoint Garland to the court anyway.

Judge Merrick Garland was Obama's pick for the Supreme Court in 2016, but the Republicans never even granted him a nomination hearing, let alone a vote. (Charles Dharapak/Associated Press)

But Obama, whose legacy weakness might be his respect for every side of every argument, refused and the consequences were seismic.

By seizing the politically powerful question of who should appoint Scalia's replacement and throwing it to the voters, McConnell may have made the Hail Mary pass that persuaded country club Republicans to put aside their reluctance about Trump and vote for him — and that might have made all the difference.

In any event, McConnell considers his blocking manoeuvre to be his finest moment, and why not? It arguably put Trump in the White House, put Trump's pick Neil Gorsuch on the Supreme Court and might now put another Trump nominee on the court, too.

But it also poisoned the atmosphere.

Trump's first pick for the Supreme Court, Neil Gorsuch, centre, has pleased U.S. conservatives with his rulings this week. (Carolyn Kaster/Associated Press)

So, you bet Democrats will be fired up to control what happens next. They will be demanding their own leadership steel itself for a fight and not get hamstrung by high-mindedness again.

They will insist minority leader Chuck Schumer find a way to run the same play against Republicans that Republicans ran against them in 2016; to block any nominee until after the midterm elections or, if they can, right through until the 2020 presidential election.

And the leadership, fresh from a stinging rebuke from its base in Tuesday's New York primary, where the chair of the Democratic caucus, Joe Crowley, got knocked out of the political arena by a 28-year-old political neophyte, Alexandria Ocasio-Cortez, surely knows there will be consequences for them if they lie down now.

Democrats will be demanding Senate minority leader Chuck Schumer find a way to block the nomination of a new Supreme Court justice until after the midterm elections or even until the 2020 presidential election. (J. Scott Applewhite/Associated Press)

But what to do? Republicans are planning a nomination vote this fall and Democrats are virtually powerless to stop it. They could try to hold up all other business in the Senate, but there's no guarantee they'd succeed.

It used to be that they could filibuster a Supreme Court nomination. That meant a nominee needed 60 votes for confirmation, and that was supposed to persuade the president — any president — to nominate the kind of candidates who could get at least a few votes from across the aisle.

But when Senate Democrats filibustered the vote on Gorsuch last year, the Republican leadership directed their majority to take the filibuster away. That set a new precedent where a nominee can be confirmed with just 50 senators plus the tiebreaking vote of the vice-president.

A further poisoning of the atmosphere.

Elections matter

The Republicans have 51 votes now, including that of the deathly-ill  Sen. John McCain, so Trump is already working within the tightest possible margin.

The Democrats opened with a demand to delay any vote until after the November elections, saying the Republicans established that rule in 2016. To do otherwise "would be the absolute height of hypocrisy," said Schumer.

By now he should have learned there is less than zero chance that Mitch McConnell cares about that.

And everyone should understand more clearly now than ever that elections do indeed have consequences.

About the Author

Keith Boag

American Politics Contributor

Keith Boag writes about American politics and issues that shape the American experience. Keith was based for several years in Los Angeles and now, in retirement after a long career with CBC News, continues to live in Washington, D.C. Earlier, Keith reported from Ottawa, where he served as chief political correspondent for CBC News.

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