Jurisprudence

Mitch McConnell Is Cranking Out Lame-Duck Judges

His move to keep seating Trump’s appointees breaks a 125-year precedent.

Mitch McConnell in profile.
Mitch McConnell addresses reporters on Capitol Hill on Dec. 8. Greg Nash/Pool/AFP via Getty Images

“The federal judiciary held the line.” That is the narrative emerging in the wake of the string of courtroom defeats suffered by Donald Trump and his ever-shrinking clown car of lawyers despite their attempts to use judges to nullify the election. The narrative is true, as far as it goes, if “hold the line” means solely that the third branch of our national government did not abase itself in a fact-free display of groveling partisan loyalty. Given that a majority of the House GOP caucus has just done exactly that, we should not be surprised at the sighs of relief coming from anyone who has ever cared about the rule of law. The election was not close, and attempts to delegitimize it have failed at most institutional levels. The crisis, it seems, has passed; the line is “held.”

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But the story of the federal judiciary for the past four years is not one of constancy and integrity and line holding. It is one of norm erosion and the decay of integrity. Each one of Donald Trump’s appointments to the Supreme Court carries an asterisk: Neil Gorsuch, in taking a seat that was pilfered outright from President Barack Obama; Brett Kavanaugh, in winning lifetime confirmation despite flagrantly disqualifying conduct for a judge and the truncated investigation into his behavior and his background; and Amy Coney Barrett, in being rushed through confirmation eight days before the GOP lost a national election, a confirmation that violated the Senate majority’s expressly stated position only four years earlier.

And the breakdown of norms of good conduct and judicial behavior hardly stops at the highest court in the land. Multiply those asterisks by 250 and you get a sense for the magnitude of the star chamber Mitch McConnell has made of the judicial nominating process when he eliminated any semblance of institutional collaboration. A decadeslong tradition of blue slips allowing home-state senators to block unqualified nominees: gone. Qualification review and approval by the American Bar Association: gone. The threat of filibuster for extraordinary cases: gone. Some very good judges were appointed to the bench in the past four years along with all the very-not-good judges. But every appointee got there through an adulterated process that has allowed exceptionally young, occasionally unqualified, and episodically racist or misogynist or homophobic jurists to take over one-quarter of the federal bench.

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Now, as we release our relieved sighs that the constitutional crisis is behind us, Mitch McConnell is taking a pickax to one last norm in the judicial nominating process that had persisted for 125 years, by pushing through yet more judges even after his party has lost the presidency in a national election (and may still lose the Senate). On Tuesday, McConnell jammed Thomas Kirsch onto a seat of the U.S. Court of Appeals for the 7th Circuit that Amy Coney Barrett left empty when she was jammed onto the Supreme Court—a seat for which Senate Republicans denied Obama’s nominee, Myra Selby, a distinguished Indiana attorney and mediator who would have been the second Black woman to serve on that court.* Shelby was denied even the dignity of a hearing much less a vote, and instead that seat went to Barrett and now goes to Kirsch.

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With the recent death of Judge Juan Torruella of the U.S. Court of Appeals for the 1st Circuit, Mitch McConnell is now reminding us once again that he thinks principles are for suckers as he rushes yet another nominee through another lame-duck hearing just 16 days after the White House put him forward, with a lame-duck confirmation presumably guaranteed. Multiple nominees for district court judgeships will also be part of the potlatch, all with nary a word of protest from the Romney/Murkowski/Collins faction who are, we are constantly told, keeping alive the law-and-order lame-duck heart of the Republican Party. Everyone has their price it seems, and while the lawlessness of Trump is too much for these “principled” Republicans, the looting McConnell does is not just allowed but also enabled.

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Democrats, we are told, must not even speak the words court packing. Republicans can’t actually stop themselves from doing it. And so, as we take stock of the wreckage Donald Trump and Mitch McConnell are making of the institutions of government, it is important to be clear about what that harm entails. It is not just the damage done to the institutions themselves that these men inflict with their norm-shattering behavior. It is what they force us to become in response.

The dynamic is a familiar one to anyone who has had the experience of dealing with a toxic or abusive loved one who violates all the norms of interpersonal trust and care. Talk to the child of a malignant parent who survived the experience and they will probably tell you that the need to be ruthless in dealing with such people is one of their greatest sources of pain: enforcing boundaries relentlessly because the parent never will, closing their heart to any thought of a reciprocal and validating relationship because experience has proved that making that effort will only bring injury and betrayal. You want to be a good daughter, a good son, a good sibling, a good partner, not just out of ethical obligation but because it is the kind of human you truly are. But a malignant family member has the power to deny that to you. Their toxicity forces you to be become someone you do not want to be in order to prevent more injury.

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The national leadership of the Republican Party has become America’s toxic family member. And no, it’s not just Donald Trump. The GOP forces the rest of us to become something we do not want to be, pushing us away from a cooperative commitment to norms of democratic governance and into a posture of tit-for-tat ruthlessness. Hence the discussions about expanding the size of the court so that Joe Biden can counterbalance the hostile takeover that the GOP has perpetrated. Hence the take-no-prisoners attitude if Democrats do succeed in taking back the Senate and achieving a governing majority. For anyone who genuinely cares about governance, this is not the world we want and not the way we want to govern.

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Sen. Sheldon Whitehouse excoriated his Republican counterparts when they rammed through the nomination of Amy Coney Barrett days before a presidential election they were on track to lose: “Don’t think when you have established the rule of ‘because we can,’ ” Whitehouse warned, “that should the shoe be on the other foot, you will have any credibility to come to us and say: ‘Yeah, I know you can do that, but you shouldn’t.’ Your credibility to make that argument at any time in the future will die in this room and on that Senate floor if you continue.” There was no glee in the senator’s voice when he made those remarks, no eagerness to exploit this new normal when the tides shifted. There was just the anger and loss that comes with having to say: “Here is what you have taken away from us. Here is what you force us to be.”

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Discussions about reinstating the filibuster or the blue slip or anything else might make us feel better, but such efforts wouldn’t restore norms, it would be constitutional madness. Likewise Democrats must quash any impulse to name uncontroversial judicial nominees who have never written anything or fought for anything, a cozy old norm that was usually unilateral to Democrats anyway and would now just be capitulation to lawlessness.

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The temptation to nod and agree that the crisis has passed and institutions have held is wrongheaded, and not simply because there is much essential repair work to be done on institutions that have proved themselves barely capable of survival in the Trump era. It’s wrongheaded because under slow and sly cover of not actually being Donald Trump himself, extremely bad actors are getting away with precisely the kinds of norm-shattering, disdainful, and trolling behaviors that have long predated Donald Trump and will, if left unchecked, survive him as well. Mitch McConnell, seemingly incapable of interesting himself in meaningful COVID-19 relief while jamming through lifetime nominations for the first time since the 1890s, is Exhibit A in the case for continued vigilance and the need for constitutional hardball as the fog of war clears ahead of a Biden inauguration. We are so worn down by the craven, illiberal, and deceitful power grabs by Donald Trump and his crime family masquerading as an administration that we barely even clock the craven, illiberal, and deceitful power grabs by Mitch McConnell and his caucus even as the latter ensure that we all live under the dead hand of a captured judiciary for decades to come.

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The United States is finally getting rid of an abuser, and the temptation to think the danger is no longer existential is immense. But a regiment of norm-destroying gaslighters and anti-democratic enablers remain, indeed thrive, as the attention to Trump sputters and dies. We all know what we must become in order to stanch the bleeding and begin to remediate the harm. And we will not forget who forced our hand.

Correction, Dec. 18, 2020: This article originally misstated that Myra Selby would have been the first Black woman to serve on the 7th Circuit. Ann Claire Williams was the first; Selby would have been the second.

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