Imagine going to a lawyer who tells you, “Our strategy really walks the line on ethics, and the Bar Association will be up in arms. But I think we can get away with this without my being disbarred.”
Unless you’re Donald Trump searching for a replacement for Roy Cohn, I would hope that you would quickly retain another attorney.
In most spheres of life, there is a sense that moral behavior matters. We don’t go around stiffing people over small bills on the gamble that they won’t sue. Nor do we go to upscale restaurants and refuse to leave a tip because they don’t legally require it.
When did Congress become this dystopian world where the only thing that matters is raw power?
It isn’t like Lyndon Johnson was a shrinking violet as Senate majority leader. And Newt Gingrich in his war against Speaker Jim Wright over minor ethical lapses certainly helped perfect the politics of personal destruction.
But even by the permissive standards of the 21st century, Mitch McConnell’s headlong rush to confirm a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg, on the eve of a presidential election, blazes a new trail through the thicket of political hypocrisy.
The more charitable among us might pity GOP speechwriters each time they desperately have to concoct some laughably fallacious explanation why 2020 is different from 2016 when McConnell denied Merrick Garland even a cursory Judiciary Committee hearing.
Trump — who is not normally the go-to guy on matters of truth — explained the only logic the Republicans need during a Monday morning phone call to his fan club at “Fox & Friends.” Talking about the Democrats, Trump declared, “If the shoe was on the other foot, as they say, there would be no chance that they wouldn’t be doing it. … And they’d be doing it probably a lot faster than we’ll do it.”
Countless wars have been launched under the same logic — let’s bomb them before they bomb us. The 2003 Dick Cheney-led invasion of Iraq was predicated on the argument that we had to take out Saddam Hussein before he used his (mythical) weapons of mass destruction against us.
In contrast, the principled consistency of Lisa Murkowski is as rare as it is bracing. The Alaska Republican said in a Sunday statement, “I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice Scalia. We are now even closer to the 2020 election — less than two months out — and I believe the same standard must apply.”
What McConnell is doing to the last vestiges of comity in the Senate brings to mind that Vietnam line: “We had to destroy the village in order to save it.” In his quest to put a right-wing majority on the courts for the next generation, the majority leader has attacked Senate traditions with a wrecking ball.
Presumably because it takes time to build drama for the latest White House reality show, Trump has said that he will not nominate a replacement for Ginsburg until Friday or Saturday.
That would give — insert laugh track here — the world’s greatest deliberative body five weeks before the election to confirm Trump’s pick. Five weeks for background investigations, courtesy calls, Judiciary Committee hearings and floor debate. And that doesn’t include the normal timeouts for political campaigning — especially since Judiciary Chairman Lindsey Graham is locked in a tight reelection race in South Carolina.
If McConnell really believes that he is serving the will of a political majority, then he should feel confident enough to wait until after the election.
But the Kentucky Republican knows that control of the Senate is fast slipping from his grasp.
Bequeathed in 2018 the most lopsided political map in memory (26 of the 35 Senate seats on the ballot were held by Democrats), McConnell added only two votes to his majority. This time around, most forecasters give the Democrats a better-than-even chance of defrocking him as majority leader.
Careful what you wish for
During his heedless rush to stack the Supreme Court, McConnell might pause to weigh the implications of Democratic control of the White House and both chambers of Congress in 2021.
This would be a rare opportunity for the Democrats. Over the last four decades, there have been only four years when the party wielded this kind of power on both Capitol Hill and in the Oval Office.
In 1993, when Bill Clinton was inaugurated, there was a collegial air to the Senate with George Mitchell as majority leader and Bob Dole as his GOP counterpart. And Barack Obama’s 2009 filibuster-proof Senate majority lasted only a year before the Democrats squandered the late Ted Kennedy’s Senate seat in a Massachusetts special election.
If Joe Biden holds his lead in the polls and Schumer becomes majority leader, Republicans would have to deal with the potent combination of well-justified Democratic rage and the political ability to act on it.
If you want to see real change in Washington, imagine if a Democratic Senate eliminated the filibuster so that Congress could then increase the size of the Supreme Court and admit the District of Columbia and Puerto Rico as states.
How would McConnell regard his legacy with four Biden appointments to a 13-member court and four new Democratic senators in a 104-member chamber?
These are not empty threats, given the anger of the Democratic base and many legislators.
This kind of comeuppance would be the direct consequence of McConnell’s scorched-earth tactics. And there is a simple way for Senate Republicans to avoid this kind of Democratic vengeance — only go forward with a Supreme Court pick if Trump is reelected.
Walter Shapiro is covering his 11th presidential campaign. He is also a fellow at the Brennan Center for Justice at NYU and a lecturer in political science at Yale. Follow him on Twitter @MrWalterShapiro.