Just hours elapsed between when Mitch McConnell learned about Justice Antonin Scalia’s death and his decision to block all attempts by Democrats to fill his seat.
That decision in February 2016 while on a tropical vacation in the US Virgin Islands is among the most momentous decisions for McConnell (R-Ky.) as Republican Senate leader.
He began by blocking President Barack Obama’s last Supreme Court nominee, saying there wasn’t enough time with less than a year left in the president’s seond term. Republicans would go on to fill three Supreme Court seats during Donald Trump’s presidency, cementing a 6-3 conservative majority on the Supreme Court that would, in short order, overturn abortion rights, curb affirmative action, undermine the administrative state, and expand gun rights.
More so than any legislative achievement, McConnell’s biggest legacy is his efforts to reshape the federal judiciary, the fruits of which will endure long beyond his tenure.
“Mitch McConnell saw the policy making potential of the federal courts and worked hard – and succeeded – in getting as many vacancies filled, by and large, with young White conservative lawyers,” said Russell Wheeler, a Brookings Institution scholar who studies judicial nominations.
Tipping the Balance
McConnell’s impact on the court is especially evident in the wake of the Supreme Court’s Roe v. Wade reversal, which led to a slew of state abortion bans and has been linked to an Alabama ruling this month that threatens in-vitro fertilization. Democrats are still bitter about the decisions that led to one of the most conservative Supreme Courts in modern US history.
“He withheld Obama’s opportunity to fill the vacancy on the Supreme Court,” Senate Majority Whip Dick Durbin (Ill.) said Wednesday. “It tipped the balance on the court and we’re paying for it now.”
While Democrats have panned many of McConnell’s methods to influence the judiciary, conservative writer Mona Charen said both parties used some of the same tactics. Former Majority Leader Harry Reid (D-Nev.) in 2013 used the so-called nuclear option to usher through Obama federal judicial nominees.
“He knew parliamentary procedure really well and he prioritized confirming judges over other things,” Charen, who was featured on a documentary titled “McConnell, the GOP & the Court,” said of McConnell’s uniquely effective judicial strategy.
Democrats and Republicans alike see McConnell’s influence on the courts as one of his most lasting legacies as leader. Sen. John Hickenlooper (D-Colo.), who disapproved of McConnell’s methods to move the judiciary rightward, said in a brief interview it’s clear that one of the leader’s top priorities was to “stack the courts.”
As majority leader, McConnell pushed more than 230 of Donald Trump’s judicial nominees through the Senate, including the three Supreme Court justices. By the end of his tenure, Trump had appointed one-third of federal appeals court judges.
His impact on the judicial system was “enormous — probably the most consequential of any US senator in the modern era,” Sen. Marco Rubio (R-Fla.) told reporters. Sen. John Kennedy (R-La.), who objected to a characterization of McConnell “packing” the courts with Republicans, said one of the leader’s legacies will be recruiting conservative judges to the federal judiciary.
McConnell’s focus on the judiciary wasn’t universally popular in the GOP, where a growing right flank opposes many of the leader’s top priorities. Sen. Tommy Tuberville (R-Ala.), who’s been a thorn in McConnell’s side by blocking military promotions this year, said Republicans “still have lost a lot of battles” with McConnell in charge.
“That’s all I’ve heard since I’ve been here: look what we did with the Supreme Court,” Tuberville said Wednesday. “But we also spent about $4 trillion more in my first three years than we should have.”
Strategy
McConnell is credited with setting in motion the mechanisms and advantages that would aid Donald Trump’s unprecedented legacy on the federal courts
Trump inherited a large bloc of vacancies due to McConnell’s efforts to slow Barack Obama’s nominees during his tenure, giving the Republican president a head start in appointing as many judges as possible at the start of his term.
His success in this area during the Obama years is best epitomized by the Democratic president’s failure to appoint Merrick Garland to the Supreme Court following Scalia’s death, as McConnell led Republicans in refusing to hold a hearing or vote on Garland’s nomination.
McConnell-led Republicans in 2017 also lowered the threshold for confirming Supreme Court justices from 60 to 51 votes, clearing the path to confirmation for Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in the narrowly and bitterly divided Senate.
Sen. Lindsey Graham (R-S.C.) said he could see many members of his party taking up the mantle of McConnell’s focus on the judiciary. Republicans are well-positioned to retake the Senate in November if they can flip one or two seats, depending on which party wins the White House.
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