As peculiar as this may sound, Senate Majority Leader Mitch McConnell is who we need to thank for the opportunity to push the leanings of the Supreme Court towards originalism. Let me explain.
All the way back in early 2016, Justice Antonin Scalia tragically passed away, leaving a rather tenuous vacancy on the supreme court. Losing a reliable originalist on the Supreme Court during the ultra-left-wing Obama administration was unnerving to constitutionalists who feared what another leftist judge would do to individual liberty. President Obama had successfully nominated 2 left-wing judges (Justice Sotomayor and Justice Kagan), but with his opposition in control of the Senate, it looked as though he had no choice but to moderate his choices. Enter Judge Merrick Garland.
Justice Garland, the Chief Justice of the U.S. Court of Appeals for the District of Columbia, is known to be a moderate leftist (if there is such a thing). He attended Harvard and earned his J.D., graduating magna cum lade in 1977. He was appointed by then President Bill Clinton and passed through the Senate with bipartisan support. Notably, Arizona Senator John McCain and Maine Senator Susan Collins voted in favor of his judgeship, while then Alabama Senator Jeff Sessions and Senator Mitch McConnell voted against him. Judge Garland ruled in favor of the usurpations environmental regulation and has favored unconstitutional gun restrictions, yet is moderate when compared to the radicals that President Obama usually favored.
Mr. Obama nominated Judge Garland to replace the conservative darling Justice Antonin Scalia. Hardly an equitable replacement in the mind of most conservatives who knew that the balance of the court was at stake. Losing Scalia’s seat to a left-wing activist judge would have spelled bad news for religious freedom, 2nd amendment rights and immigration rule of law, among innumerable other issues. At this point Senate Majority leader Mitch McConnell had a choice to make. Either he would take up a vote on Judge Garland which would likely have resulted in his confirmation, or he could refuse the vote and take a gamble that Trump would be elected. The latter being preferable given the opportunity for a Republican president to choose Scalia’s replacement.
Despite enormous pressure from those on the left of stonewalling, unfair play and yes, even racism, Leader McConnell remained firm and refused to execute the atypical action of voting on a Supreme Court nominee during a presidential election year. Indeed, he chose to uphold the “Biden Rule”, in which then Senator Joe Biden suggested no Supreme Court nominee should be voted on during a presidential election year. Leader McConnell’s wager paid off when President Trump was elected and successfully nominated the staunch originalist Justice Neil Gorsuch to the Supreme Court. Currently, we are seeing it pay dividends when considering the replacement of Justice Kennedy with a textualist like Justice Raymond Kethledge or Justice Amy Coney Barrett.
Senator Mitch McConnell’s tenure as Senate Majority Leader, while far from perfect, will be defined by this move protecting the Supreme Court and allowing for the possibility for originalism to dominate the court’s philosophical leanings. Of course, President Trump is also to thank given the role of the executive branch in choosing Supreme Court justices. If Hilary Clinton were president, this opening would spell disaster for those in favor of textualism. However, in concert with President Trump’s leadership, the road laid out by Mitch McConnell’s gamble will be remembered as the lynchpin that gave rise to an originalist court that more closely resembles what was envisioned by the founders. For this Americans are in his debt.
Author: Tom Romeo is a Policy Analyst with the Goldwater Institute and Koch Associate at the Charles Koch Institute. He received both his B.S. and M.P.H. from the University of Arizona.
Thomas Romeo, MPH