Patriotic indignation is currently pounding on Comrade Putin for his dirty tricks befouling the US presidential election and on Citizen Trump for his indifference to the cyber scandal. But a far greater crime against American democracy is under way that’s clearly visible and scarcely noted.
The Republican Senate leader, Senator Mitch McConnell, violated the Constitution, and he has not been properly punished for his offense. He unilaterally blocked any appointment to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia last February. McConnell announced within hours that there would be no replacement for the Supreme Court vacancy until after a new president is elected.
President Obama ignored McConnell’s illegal diktat and nominated a distinguished appellate judge, Merrick Garland, to sit on the Court. A few senators had polite conversations with Judge Garland, but the Judiciary Committee refused to hold any hearings on confirmation or even acknowledge that the president had fulfilled his duty as prescribed in the Constitution. The Senate majority leader simply refused to perform his constitutional duty in the “advise and consent” process.
McConnell wasn’t subtle about his political motive. He announced he was holding the Constitution at bay in the hope that a Republican would win the presidential election and therefore conservatives could restore their 5-4 majority. Trump’s victory fulfilled McConnell’s gamble. The country will suffer the damaging consequences of right-wing lawmaking for years to come.
Who lost? Women and minorities are likely candidates, probably also workers in general, since right-wing judges tend to favor owners and employers over labor. Progressive decisions that advanced equality years ago—even decades ago—could now be re-opened for reactionary reconsideration.
Who won? Why, corporations, of course, and their law firms and those corporate lawyers of the Federalist Society who perhaps yearn to become Supremes themselves some day.
Donald Trump talks vaguely about returning the abortion question to the state legislatures, which suggests that will be his standard for filling the vacancy. That is, only judges willing to reverse Roe v. Wade are eligible—empowering any crackpot assembly to regulate women according to whatever crackpot preachers demand.
Steve Michel, an environmental lawyer from Santa Fe, New Mexico, was disgusted with this twisted distortion of constitutional purpose. So he filed a federal lawsuit with himself as plaintiff. His civil rights were violated by McConnell’s illegal intervention, he argues, so the Supreme Court should tell the Senate to fulfill its duty.
“Unless this court grants the injunctive relief I request, l will have been irreparably harmed because the senators I elected, and who represent me in the Senate, will have been denied a vote in the required Senate function of deciding whether it confirms judge Garland.”
Nice argument but not a likely winner, as Michel knew, because case law generally holds that courts may not issue orders to Congress. The DC district court swiftly rejected his lawsuit, and so did the appellate court where Judge Garland serves himself (though he didn’t participate in this ruling). Michel filed a final appeal last week, to Chief Justice John Roberts. “My last gasp,” the lawyer said. Roberts dismissed it too.
Right-wingers are no doubt chortling at the success of their dirty dealing, but progressives should remember this episode when the Supreme Court gets its renewed right-wing majority. Chief Justice Roberts went along with the sting, and Americans should be reminded of this every time his new conservative majority strips some innocent victims of their rights.
McConnell has permanently politicized the Supreme Court, and Chief Justice Roberts is complicit. Because any time there is a vacancy by death or resignation, congressional leaders can manipulate the process in similar ways. If it is OK for a single senior senator to stall the Constitution for nearly a year, why not hold a vacancy open for two years, or whatever the political situation seems to require?
The Supreme Court has already been dysfunctional thanks to McConnell, because the current 4-4 division can’t decide hard cases. The Court’s integrity will be further undermined if it swings hard right on with a new “Trump majority.” Roberts doesn’t get to pick his colleagues, but he should worry about the Court’s reputation as right-wing stooge.
If Trump does nominate a hard-headed extremist to please the Bible lobby, it might be time to file an impeachment resolution against McConnell. The resolution would accuse him of violating his constitutional duty and undermining respect for law and justice in order to achieve a cheap political victory. It’s a simple, straightforward case that could be tried in one day.
Yes, McConnell might very well be acquitted, but the case would educate both public and politicians on civic virtue. As a voting issue, it might even put right-wingers at risk in some congressional districts. I suggest that when the illegitimate Trump Supreme Court hands down an odious anti-social decision, dissenting citizens should picket the high court with “Impeach McConnell” posters.
Mitch McConnell’s scandalous hard-ball manipulation of the Supreme Court illustrates why Democrats need to toughen up their political game. This should be a wake-up moment for them. Republicans play to win. Democrats play to win with professors and New York Times columnists.