SCHWEIKART: Why Mitch McConnell Actually Deserves Some Credit For Kavanaugh
I give Senate Majority Leader Mitch McConnell a lot of friendly (and not so friendly) guff, beginning with my affectionate name for him, Yertle. During the Obama years, I—and many others— argued he was insufficiently combative, especially when it came to supporting fighters like Ted Cruz and shutting down the government.
Since the election of Trump, Yertle 2.0 has emerged from his shell.
It began with Trump’s nomination of Neil Gorsuch to replace Antonin Scalia on the U.S. Supreme Court. Yertle announced he would get Trump’s nominee confirmed, and rounded up every single Republican—except Johnny Isaakson (who was out with back surgery)—to vote for Gorsuch. But Yertle also helped pressure three Democrats, Heidi Heitkamp, Joe Manchin, and Joe Donnelly, to vote yes for a final tally of 54-45.
But Yertle actually made a more courageous maneuver, and one that set the stage for virtually all that is happening now with the nomination of Brett Kavanaugh to replace Anthony Kennedy, in corralling his caucus to end the so-called “nuclear option” in April, terminating the Democrats’ ability to use the filibuster to stall Republican judicial nominees. That vote was a shockingly close party line vote of 52-48, at a time when Arizona’s John McCain was still healthy enough to appear in the Senate.
Even more important still, however, was the moment when Yertle stood at the bridge in March 2016 and said “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction.” In so doing, he refused a hearing to Barack Obama’s nominee, Merrick Garland. With support from Paul Ryan and Senate Judiciary Chairman Charles Grassley, Yertle stood tall and attacks bounced off his shell.
Making Yertle’s position all the more difficult was that by March 2016, he almost certainly knew that Donald Trump would be the nominee of the Republican Party, and given that he almost certainly also subscribed to conventional wisdom, it meant he did not think Trump would be president. So was Yertle merely hoping President Hillary Clinton would have a better nominee? Was he holding out hope that Trump might win? Was he making an institutional statement about the role of a Republican senate under a Clinton administration? Or was he just (gulp!) brave? No one knows.
Yertle’s stand at the bridge, however, was monumental. Gorsuch was confirmed, but Yertle—whom I and others have accused of doing little to advance the Trump agenda on occasion—nevertheless marched forward at a hare’s pace to confirm all of Trump’s circuit court nominees. Note that if Kavanaugh is confirmed, which is likely, his replacement on the D.C. circuit court will be . . . another Trump appointee.
Another of Trump’s circuit court nominees received a cloture vote yesterday before the announcement of Kavanaugh, and will advance to the floor this week for confirmation, bringing the total number of Trump’s circuit court judges to 22. This is a record for any president’s first two years and Trump still has six months left to fill other vacancies, assuring he will expand on that record, probably finishing the first half of his first term with about 28 confirmed judges. Already he had filled 8% of all circuit court seats, and now is pushing 10%. If he gets his remaining open seats confirmed, he’ll move closer to 11-12% in two years. At the rate Yertle is confirming Trump’s circuit court judges, at the end of Trump’s two terms he will have named more than half of all federal circuit court judges. It truly will have become the “Trump judiciary,” but easily enough could be called “Yertle’s judiciary.”
But before us now is another Supreme Court nominee, Brett Kavanaugh, an excellent appointment. Some of the perfectionist conservatives, who would have been happy with none of Trump’s superb list, point to perceived weaknesses in Kavanaugh. But he and Gorsuch will cement the right wing of the court for years. In all likelihood, the Republican caucus will not defect on Kavanaugh. Even the Bushes like him! My guess is he will get at least one or two Democrats for a final tally of 54 or 55 votes in favor of his confirmation.
Then comes the real “What if?” Ruth Bader Ginsberg is 85 and in ill health. She has survived a pancreatic cancer diagnosis far longer than most. Rumor was that Democrats were furious with her for not retiring in the middle of Obama’s administration when a younger liberal could be appointed. Now she has a major problem with “clock management” as they say in the NFL. She can (and likely will) try to wait out Trump’s first term. But I’ve got news for Buzzi, as I affectionately call her: Trump will be reelected by a larger margin than in 2016. At that point, if she has not assumed room temperature, she almost certainly will step down. Meanwhile Stephen Breyer, the other liberal, is 78 and faces retirement, and conservative Clarence Thomas for years has waxed about stepping down and traveling the country in his RV.
The reality is that Trump is just beginning, and that he almost certainly will get three more Supreme Court picks before he’s through. As things now stand, the 2018 election for the House is up in the air—trending slightly Republican, but close—but the senate is almost a done deal. Democrats will likely lose between two and five seats (Michigan, Wisconsin, and Pennsylvania, once in question, have now firmed up for them). Of more concern for the Democrats is that several reliable defectors, including Jeff Flake and Bob Corker and John McCain (who, like Ginsburg, defies medical prognosis) are going to be replaced by full-throated Trumpers. If a number of dominoes fall in line—that McCain finally steps down and is replaced by a true conservative by Governor Doug Ducey; if either Kelli Ward or Martha McSally can hold Jeff Flake’s seat; if Dean Heller hangs on; if in fact the weaker Democrats in red states, including Joe Manchin, Heidi Heitkamp, Joe Donnelly, John Tester, Claire McCaskill, Tami Baldwin, Debbie Stabenow, and others are upset, the Republicans could be looking at a net Trump gain in the senate of 5-6 seats. This would forever end any hopes of the Democrats for splitting the GOP on key votes. Now a Susan Collins or Lisa Murkowski’s defection would be irrelevant.
In short, while Trump’s election was the political event of the last 30 years (and perhaps last 100), Yertle’s stand at the judicial bridge of holding off Merrick Garland will go down as strategically one of the most critical political acts of modern history. The 2025 Supreme Court and Trump judiciary will owe much of its existence to a feisty turtle.
Larry Schweikart is the co-author of A Patriot’s History of the United States with Michael Allen and of How Trump Won, with Joel Pollak.