The Notorious Mitch McConnell
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Justice Ruth Bader Ginsburg may be out of the hospital after a bout with fever, but that hasn’t stopped the Democrats from prepping the ground for a battle should the Notorious RBG, as the Justice is known to her fans, step down or die before the election. That’s the latest report in the Hill newspaper. It reckons that “liberal activists are already calling on President Trump to keep any possible Supreme Court vacancy open until after the 2020 election.”
It turns out they’re worried about the Notorious Mitch McConnell, as the Senate majority leader will be called herewith, at least for the moment. The Notorious McConnell, the Hill reports, has indicated he would go ahead and fill a court vacancy next year, should Mr. Trump send a nominee. Never mind that as the election approached in 2016, Mr. McConnell denied a hearing for Judge Merrick Garland, President Obama’s nominee to succeed Justice Scalia.
The Sun is on Mr. McConnell’s side here. By our lights, no logical analogy exists between the situation shaping up in respect of a successor to Justice Ginsburg, should she die or step down before the election. It is completely different than the situation Mr. Obama faced. The difference is control of the Senate. President Obama, a Democrat, faced a Republican Senate. Mr. Trump, a Republican, will for the remainder of his term face a Senate controlled by the GOP.
It would have been fine with the Sun had Mr. McConnell given a hearing to Judge Garland; we get how distinguished he is. We did, though, share doubts about Judge Garland’s fidelity to the plain language of the Second Amendment. He voted for giving an en banc review to his circuit’s ruling overturning the District of Columbia’s ban on handguns (though without ruling on the merits, Scotusblog reports). Were Judge Garland unable to account for himself on guns, we’d have urged a vote against his confirmation.
We understand that Senator Orrin Hatch once suggested — circa 2010 — that Judge Garland might get a bipartisan confirmation. That, though, was when the Senate was in Democratic hands. Once the Senate was in Republican hands, Judge Garland’s chances were radically reduced. It’s hard to imagine that the Judge himself failed to appreciate that. Or that he would have revised his own view of the Second Amendment, though it doomed his chances.
Were an opening on the Supreme Court to present itself in the next 13 months, it’s hard to imagine a circumstance in which the Senate would wait for the election. With the last two nominees that Mr. Trump sent the Senate — Justices Gorsuch and Kavanaugh — America discovered that the Senate capable of standing on principle. It gave both a hearing, and faced down Democratic Party demagoguery, particularly in the case of Justice Kavanaugh.
Marge Baker of People for the American Way is quoted by the Hill as suggesting that the next confirmation should await the 2020 election. Not only because Mr. Trump will be near the end of his term but also because “public trust in his presidency is pretty low.” Then again, too, public trust in Congress is even lower. The constitutional framers could easily have curbed the Senate’s consent powers during lame duck sessions. They didn’t, a fact every Senator is sworn to support.
Image: Photograph of Senator McConnell by Gage Skidmore, via Wikipedia Commons.