Wednesday, June 17, 2020

Sympathy For Mitch McConnell

Mitch McConnell has made his name by accomplishing two things:

1) Shepherding judicial nominees through the Senate confirmation process, and

2) Stonewalling progressive legislative initiatives.

He has accomplished these two things in the face of a relentless drumbeat of vilification--often from both liberals and conservatives--and by persuading Republican senators to close ranks. That's a job a bit akin to herding cats.

I get that federal judges belong to a separate and equal branch of government, even though their nominations are proposed by the POTUS and are confirmed with the advice and consent of the Senate. I get that they're not supposed to tip their hands regarding their views on any particular case or controversy, and that this applies in spades to SCOTUS justices--their decisions are supposed to rise above partisan politics. So I hope I won't sound hopelessly naive or even a bit gauche if I raise an issue of simple personal decency.

Let's put aside the notion that SCOTUS justices don't take sides in politics and don't arrive at their position with policy preferences. That illusion should have been dispelled long ago.

So consider the amount of time and money that conservative groups invested in confirming Gorsuch and Kavanaugh, not to mention--on a slightly different level--the political and, yes, moral capital that the President Trump and other Republican politicians invested in the confirmation of these two judges. Untold time, effort, and many, many millions of dollars went into their confirmations. Would it not have been the decent thing to do to offer a heads up to these people? Not tipping one's hand regarding any specific case or controversy, just a simple, Hey, I may not be who you think I am?

Consider Mitch McConnell's position in particular, in light of this reminder from Josh Hammer (who clerked for a federal appellate judge):

In Bostock v. Clayton County, the majority informed us that the interpretation of Title VII of the 1964 Civil Rights Act, held unchallenged between its enactment and the year 2017, was, in fact, erroneous. ... 
This isn’t textualism. It’s ivory-tower liberalism. ... 
The tangible results will be harrowing. Following Bostock, can a Catholic school deny employment to a teacher whose sexual lifestyle blatantly flouts millennia of Catholic moral teaching? Can an Orthodox Jewish day school refuse to hire a male teacher who self-identifies as a woman, contravening traditional teaching rooted in Genesis? 
Speaker Nancy Pelosi tried to enact much of this agenda legislatively in 2019 with the so-called Equality Act — and failed. All it took was a Republican justice to impose it ­nationwide via judicial fiat. 
Religious employers’ conscience rights aside, long-settled employment law has now been thrown into chaos. The court concedes that such issues as sex-specific bathrooms, locker rooms and sports teams will be on the chopping block in future litigation. ... 
The substitution of subjective gender identity for embodied sex particularly threatens biological women, whose rights Congress specifically set out to protect with the 1964 act. ... 
Bostock is no joke, and it lays bare the moral and intellectual bankruptcy of the conservative legal movement. 
Let’s say this in the bluntest possible terms: The conservative legal movement and its various institutional vessels, such as the Federalist Society, have failed conservatism. There is simply no avoiding that straightforward conclusion — not when the blow is delivered from the Federalist Society-vetted Neil Gorsuch.

Trump and Mitch McConnell surely sounded Gorsuch out on his legal principles during the confirmation process. Surely Gorsuch could have given both of them some hint as to where he intended to go on such controversial issues as turning the legal landscape of the country upside down? Please don't tell me Gorsuch hadn't given this a thought beforehand.

Instead, McConnell got Gorsuch through the Senate in the face of intense opposition and some wavering from Republicans. He went on to hold the line against Nancy Pelosi on such outrages as the Equality Act. Then Gorsuch stabbed him in the back.

It seems indecent, especially when the basis for the decision--the unscientific fairy tale of "gender identity"--is driving this far reaching trashing of the Constitution. This was a matter that was being fought over through the legislative process. We the People's elected representatives were debating it. Then along comes Neil Gorsuch with his decision, and the offhanded assurance that the most intimate concerns of personal life will be handled "in future cases." Talk about a power grab! And let's not pretend that Gorsuch doesn't know the depth of opposition among "ordinary" citizens to his power play.

And what are we to say concerning the Federalist Society and its role in all of this? How much support--which is to say, MONEY--has the Federalist Society received from religious conservatives over the years? Yes, that was part of the bargain that Josh Hawley spoke about yesterday. It wasn't just a bargain between elected representatives and religious conservatives. The Federalist Society held themselves out as guardians of our constitutional order. They supposedly vetted Gorsuch.

Let's be frank about this. For years now any conservative legal type who wanted to rise to become a federal judge, who may even have aspired to the SCOTUS bench, had to cultivate close contacts with the Federalist Society. Are we to believe that the honchos of the Federalist Society could not have demanded some form of assurance regarding judicial philosophy from those judicial aspirants? How could they have failed so signally to fathom the soul of Neil Gorsuch? Was Gorsuch truly such a master of disguise as we're now supposed to believe?

Which leads one to suppose that Josh Hammer is right. Perhaps the real problem is that the conservative legal movement, led by the Federalist Society, is itself morally and intellectually bankrupt. Once again conservatives have been led down the garden path by libertarian ideologues, but the price at this juncture of our history as a nation is likely to be an exceedingly steep price.


  1. Bravo, Mr. Wauck.

    I personally believe that the President should interview each candidate for Supreme Court justice and ask tough and probing questions. Not questions like "Will you promise me that you'll overturn Roe v Wade." But questions like "Was Roe v Wade correctly decided? If no, does it deserve to be retained due to the principle of stare decisis?"

    He could ask a lot of questions to get at the heart of a man's legal reasoning. If the candidate says that these questions are inappropriate and he won't answer them,the President should thank him for his interest and move on to the next candidate.

    I think a lifetime appointment to one of only nine kingship positions merits a lot of scrutiny.

    Personally, I'm tired of a lot of O'Connors, Kennedys, Souters, Robertses, Gorsuches and Kavanaughs. I want more Scalias, Thomases and Alitos.

  2. Mitch McConnell has not allowed any recess appointments and there are still a lot of open judicial nominations, and less than 50 working days left of the Senate.

  3. First things first. Trump needs to do his utmost to get reelected. As such, there will likely be at least one more Supreme Court nomination during his second term. If so, Trump will likely nominate someone with clear and strong conservative bona fides. And even if the Republicans hold the Senate, there will undoubtedly be a nuclear war to stop the nomination. To which, Trump (in his lame duck second term) should simply stick with his nominee and let the Court remain at eight justices until 2025. This won't solve the Bostock problem, but it will prevent things from getting worse than they already are. And if the Federalist Society doesn't self-correct from the Gorsuch debacle, they should be replaced with a new judicial review body.