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Al Cross: Power, precedents, and political pyromania — yes, indeed, Mitch McConnell is playing with fire


There is logic in Sen. Mitch McConnell’s argument for quickly filling the Supreme Court vacancy left by the death of Ruth Bader Ginsburg, but upon close inspection it reveals his flawed political nature – and its risk to the country.

To many, the boss of the Senate seems to be following different rules than he did in 2016, when he declared hours after Justice Antonin Scalia died that the Senate wouldn’t fill the vacancy until after a new president was elected because “The American people should have a voice in the selection.”

Now, in rushing to replace a liberal justice with a conservative one, he says the situation is different, because the Senate and the White House are controlled by the same party, unlike 2016.

His explanations have been a bit legalistic and academic. Sen. Mitt Romney summed them up best as he announced he was following McConnell’s lead: “The historical precedent of election-year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”


Al Cross (Twitter @ruralj) is a professor in the University of Kentucky School of Journalism and Media and director of its Institute for Rural Journalism and Community Issues. His opinions are his own, not UK’s. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010.

NKyTribune and KyForward are the anchor home for Al Cross’ column. We offer it to other publications throughout the Commonwealth, with appropriate attribution.

In other words, if the Senate and the White House are in harness, the wagon rolls. More bluntly, if you have the power, use it, as President Trump said Monday: “When you have the Senate – when you have the votes – you can, sort of, do what you want.”

McConnell, who relishes power and its use, is rarely so blunt about it. In 2016, he didn’t make the divided-government argument until nine days after Scalia died, and it was secondary. His most consistent argument was the most politically attractive: Let the people speak first.

Occasionally, he added a corollary, that voters had rejected Barack Obama’s priorities by giving Republicans the Senate majority (and making him the boss) in 2014. Now he notes that the majority grew by two in 2018 after Democrats ran on Republicans’ handling and confirmation of Justice Brett Kavanaugh. But Senate elections, especially in non-presidential years, have many issues; they are not national referenda.

In the end, it comes back to power and how it is used. McConnell’s historical precedents are all about the use of power, because those are the only precedents that support his abandonment of the argument he made most often in 2016: Let the voters speak.

He shuns that argument now, but he may let the people speak before he calls a vote on Trump’s nominee. His majority is at risk; the issue will have unpredictable effects on Senate races; and he probably doesn’t want a nominee to suffer sharp questioning from Judiciary Committee member Kamala Harris while she is Joe Biden’s running mate.

So, after the election, we could see the lamest of lame-duck confirmations, by a president and a Republican majority that the people have voted out. They will have spoken, but will McConnell and his caucus be listening? Probably not; he has promised a vote, without saying when.

Louisville native John Harwood said on CNN Tuesday, Republicans see they are outnumbered in the country, and “That fuels a psychology of get what you can while you can.”

A successful lame-duck power grab by McConnell would fuel an escalation of the partisan warfare in which he has been a leading combatant. Some Democrats are talking about using a new majority to expand the court to 11 justices, to counter what they see as Republicans’ partisan installation of Kavanaugh and Trump’s latest nominee. That would enmesh the court further in politics and erode trust in its standing, at a time when we need strong institutions.

Some Democrats also talk about abolishing the Senate filibuster, which McConnell and former Democratic leader Harry Reid turned into a standard process, requiring 60 votes to do almost anything important; and admitting the District of Columbia and Puerto Rico as states, to reduce the advantage that largely white, rural, Republican states have because every state gets two senators – a bias increased by the filibuster.

Admitting new states through partisan votes would be historic change, troubling to many Americans. But so would the installation of a firmly conservative Supreme Court majority that could limit a woman’s right to an abortion, throw out the Patient Protection and Affordable Care Act, remove the ability of the federal government to regulate greenhouse gases, and a host of other issues.

Power and precedents have their place, but so does principle. Gerald Seib, executive Washington editor of The Wall Street Journal, correctly noted, “Political power rather than principle is becoming the key variable in shaping the nation’s highest court.”

The country is already riven by all sorts of divisions, fed by a president who won’t even commit to a peaceful transfer of power. McConnell has enabled Trump’s threats to democracy, and now they have launched an exercise in raw power as an election approaches.

They’re playing with fire.


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