Thank You Mitch McConnell

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.

https://www.linkedin.com/in/thomas-romeo-mph-bb6807112/

Thomas Romeo, MPH
Policy Analyst
Goldwater Institute

3 Comments on "Thank You Mitch McConnell"

  1. The Oracle of Tucson | July 8, 2018 at 9:22 pm |

    Apparently some in the looney militant left don’t share this deep sense of admiration for Mitch.
    As recently demonstrated, a group of angry Democratic Socialist protesters followed
    Senate Majority Leader Mitch McConnell (R-Ky.) through a restaurant parking lot on Saturday, always finding courage in numbers, they started verbally attacking and berating the Senator with a mixture of immigration rhetoric and personal insults, and at one point made a reference to an apparent threat to visit his home. So nice to see that civility has given way to impassioned discord teetering on mob violence.
    Gee, I can’t imagime how upset they’d all be if crooked Hillary hadn’t rigged and stolen the democratic nomination from Sanders, and he was the current sitting President sending up his picks for the high court.

    The Oracle

  2. Albert Lannon | July 9, 2018 at 10:03 am |

    I earned my Master’s Degree in San Francisco, which is why some folks will say I didn’t know some of the words in this story, despite also being a voracious reader — so I looked them up:

    Definition of originalism– US law: a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.

    Definition of textualism: strict or rigid adherence to a text — US law : a legal philosophy that laws and legal documents (such as the U.S. Constitution) should be interpreted by considering only the words used in the law or document as they are commonly understood.

    Interesting. So logic tells me that the Second Amendment, which is one sentence, refers to “the right of the people to keep and bear arms,” as part of “a well regulated Militia.” I have asked gun advocates, “what ‘well-regulated Militia’ do you belong to?” So originalists and textulalists would have to agree with Article 1, Section 8 of the Constitution which says: “The Congress shall have Power…To provide for organizing, arming, and disciplining the Militia….” Puts the Second Amendment debate in a whole new light, doesn’t it?

    And originalists would have to agree that semi-automatic and automatic weapons are not what the Founders were talking about when they said “arms,” no Glocks around then.

    And those who argue against peaceful protests can’t be originalists or textualists because the First Amendment is clear in its language. And how the heck can ICE be rounding up children when the Fourth Amendment prohibits “unreasonable searches and seizures”….?

    Do originalists argue that African Americans are still only 3/5 of a person, and Indians are non-persons, as Article 1, Section 2 states. That was indeed the original intent of the Founders — maybe that’s the source of continuing racism in our nation.

    And women? No plan for them to vote in the originalists view, so maybe that explains continuing misogyny and wage disparity and sexual abuse.

    And shouldn’t textualists have been complaining about war after war that has been declared by Executive Order and in violation of Article 1, Section 8, which says that only Congress has that power? Oh, but those presidents, both Dimocrat and Republikook, didn’t call them “wars,” they were “conflicts,” “peacekeeping,”
    “necessary regime change,” etc. Tell that to the families of the dead and to the wounded warriors they sent to fight.

    Methinks that Goldwater Institute/Koch Associate “policy analysts” like Mr. Romero talk out of both sides of their mouth; either that or they are much denser than I would have thought.

  3. This is why we need McSally so as to beat Simema, to confirm Trumps judicial appointments, especially to the Supreme Court.

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