the national interest

Mitch McConnell Committed a Judicial Heist and Blames Obama for His Crime

Senate Majority Leader Mitch McConnell and Supreme Court Justice Neil Gorsuch. Photo: Alex Wong/Getty Images

Here is a story about how the Republican Party violated governing norms, and lied about it, and ultimately convinced themselves that the crime they committed was actually committed against them.

The story comes to us today via George F. Will, who has given up his Republican Party identity out of dismay at the crassness of Donald Trump, but who remains mostly loyal to the party’s congressional wing. In his Washington Post column today, Will lavishes praise upon Senate Majority Leader Mitch McConnell, who deftly outmaneuvered Democratic attempts to pack the federal courts. “To prevent Republicans from reciprocating with filibusters against Obama’s packing-by-enlargement of the nation’s second-most-important court, the U.S. Court of Appeals for the District of Columbia Circuit, Democrats changed Senate rules to bar filibusters of judicial nominees other than those for the Supreme Court,” writes Will. “McConnell removed that pointless exemption to make possible the confirmation of Neil M. Gorsuch.”

So the history, as described by Will today, is:
1. Obama enlarged the D.C. Circuit Court, to create more seats he could fill with his nominees
2. Republicans retaliated by filibustering his judicial nominees
3. Senate Democrats changed the rules to eliminate the filibuster of Court nominees, except for the Supreme Court
4. McConnell eliminated the exception for filibustering the Supreme Court

First, Step 1 never happened. It is a pure figment of Will’s imagination — or, far more likely, it is a lie McConnell told Will that Will uncritically conveys. Court-packing is a pretty serious violation of political norms — if one party can change the number of seats on a court, they can quickly seize the ability to manipulate its power balance.

But Obama did not propose enlarging the D.C. Circuit. Instead, he nominated judges to fill three existing vacancies. Republican senators filibustered these nominees. Republicans didn’t argue that Obama’s choices were unqualified or too extreme. Instead they took the novel position that Obama had no right to nominate anybody, and instituted a blanket filibuster against all his nominees for the court. They proposed to eliminate the three open seats, which was itself a form of court-packing: Altering the number of seats on a court in order to manipulate its balance is court-packing, whether it’s done by adding to or subtracting from the number of seats.

In an Orwellian twist, Republicans at the time described Obama’s plan to nominate judges for the existing vacancies as “court-packing.” Again, as Politifact pointed out at the time, Obama was not packing the court, because nobody had ever described filling existing vacancies as “court-packing.” Now, the McConnell version passed on by Will today not only repeats the lie that Obama “packed” the courts, it extends it by pretending Obama wanted to add new seats to the court.

The rest of Will’s narrative is hardly more accurate. Republicans didn’t “reciprocate” Obama’s completely imaginary court-packing by filibustering his judicial nominees. They instituted a filibuster of all his nominees first. Democrats then retaliated by eliminating the judicial filibuster. Once Republicans won a Senate majority in 2014, they slowed down judicial confirmations to a historically low rate, coming close to their total blockade without quite approaching it.

Of course, the broader point of Will’s column is true. By gleefully smashing governing norms, McConnell cleared dozens of vacancies in the courts which he has helped Trump to fill. Lying about how he did it is simply the crowning touch. The Republican Party has a president who is willing to ignore governing norms, and justify it with fantastical lies that his allies in the right-wing news media repeat uncritically. McConnell and Will make it clear that Trump has taken this to new depths, but that it is a practice he hardly invented.

McConnell Stole Obama’s Court Seats and Gave Them to Trump