Mitch McConnell didn’t get to his vaunted role as the Senate majority leader by playing nice. Or even fair. He got to where he is by playing hardball politics – and not really caring whether people liked it or not.
Which brings me to Tuesday in Paducah, Kentucky, when McConnell was asked what his “position” would be on filling a Supreme Court vacancy if a justice were to leave the court in 2020. Here’s what happened next, according to CNN’s Ted Barrett:
“The leader took a long sip of what appeared to be iced tea before announcing with a smile, ‘Oh, we’d fill it,’ triggering loud laughter from the audience.”
That is a “wow.” It’s a “wow” because McConnell, back in 2016, refused to even meet with Merrick Garland, who was then-President Barack Obama’s nominee to replace the late Antonin Scalia on the Supreme Court. Even though Scalia had died in February 2016, McConnell argued that an outgoing president – even one with 11 months left in office – couldn’t make a court pick due to its lifetime tenure.
Which would, uh, seem to be exactly what McConnell is now saying he thinks would be OK – if Trump did it in 2020. What’s changed? The President is in McConnell’s party now. The end.
The McConnell team are trying to suggest that he has been entirely consistent and that the 2016 situation and a potential 2020 vacancy are very different because in 2016, the President’s party didn’t control the Senate, whereas they do now. And it is true that in March 2016, McConnell said this: “You’d have to go back to 1888, you do remember Grover Cleveland, right, to find the last time a vacancy created in the Supreme Court in a presidential year was confirmed by a Senate of a different party than the president.”
Here’s the problem with that defense: In that same press conference, McConnell said lots of other things, too. Like:
* “You’d have to go back 80 years to find the last time a Supreme Court vacancy occurring in a presidential year was approved.”
* “The tradition has been that vacancies occurring in the Supreme Court in the middle of a contested presidential election are not filled.”
It’s clear from McConnell’s comments that the thrust of his argument was that a president in the final year of his term – regardless of party – shouldn’t be allowed to make a nomination to a job that carries a lifetime appointment. You can pick a line here or there from what McConnell said at the time of the Garland pick and find a single quote where McConnell mentions the Senate being controlled by the party not in the White House. But that is cherry-picking.
Don’t believe me? Then ask yourself why McConnell, when asked about filling a SCOTUS vacancy, paused, took a sip of tea and said “Oh, we’d fill it” with a smile on his face. Or why that comment “triggered loud laughter” from the Paducah Chamber of Commerce.
The answer is, of course, because McConnell and his audience know what he did in 2016. And they know that his comment on Tuesday is a clear walk-back of that allegedly principled stand back then. What McConnell really was saying on Tuesday was that what was good for the goose is not, in fact, good for the gander. That because the court pick Trump would make would align with McConnell’s views, it would be OK. Whereas Obama’s pick of Garland was not.
(Worth noting: Obama went out of his way to pick someone in Garland who was seen as a middle-of-the-road choice, someone who had been praised by Republicans and Democrats in the past. Obama made that choice believing, wrongly, that McConnell would act in good faith and allow Garland to go through the confirmation process and get a final vote.)
Why is McConnell so willing to change his oft-stated position on a president picking court nominees in the final year of a term? Because he knows that if one of the four liberal justices either retires or dies in 2020, it will allow Trump (and the Senate Republican majority) to nominate and confirm another conservative to the bench. Which would mean a 6-3 conservative/liberal split on the nation’s highest court for potentially decades to come. And that would create a legacy for McConnell (and Trump) that would extend well beyond their time in politics, and even far beyond their remaining time on earth.
McConnell knows exactly what he is doing – the pause, the smile, etc. – and how his comments will be covered and treated. He simply doesn’t care. In his mind, the chance of Trump nominating a third conservative justice in a single four-year term is well worth the vitriol he will get from Democratic activists and the negative media coverage his clear flip-flop will cause. And when it comes to his own personal politics – McConnell is up for another term in 2020 – he figures liberals will go all out to beat him no matter what he does, while his statements on Tuesday will be cheered by the Republican base, who could care less about what he said in 2016 when Obama was president.
McConnell’s great gift is that he understands he will never win re-election with 80% of the vote. Or maybe even 60% of the vote. He is willing to be hated and win with 50.1% if need be, if it accomplishes his longer-term goals – the biggest of which is a conservative transformation of the judiciary. He is willing to do whatever it takes to make that happen.
And he could care less whether he gets called a hypocrite, which, on this issue, he quite clearly is. Or whether Democrats pledge to beat him next November. He’s seen it all before. And he’s still standing.