Sen. Mitch McConnell has fathered an ugly baby. Now he’s trying to convince everyone that his homely little bundle of joy is actually the second-coming of Cleopatra.
The ethics-challenged Supreme Court, coming off yet another lugubrious term where stare decisis, the legal doctrine of honoring precedent, was yet again flushed down the can in deference to right-wing politics, has lost its way. Yet McConnell, the Senate Republican leader from Louisville, has taken it upon himself to assume the role of Daniel Boone, guiding everyone down the proper path. In reverential tones, he’s holding that the high court is, rather, a saintly body to be treated with kid gloves, above and beyond reproach.
In a recent op-ed column appearing in The Washington Post, McConnell pronounced that court critics from the left side of the political spectrum “betray a fundamental misunderstanding of the court’s structure and purpose.”
Really? Pray tell.
“When Democrats complain about a crisis at the court, the crisis they see is its refusal to reliably advance their party’s priorities,” McConnell wrote. “They bemoan a conservative majority that puts jurisprudence above politics. Well, the evidence suggests that anyone who expects the court to function as a mere extension of legislative power is bound to be disappointed.”
He added, “This latest term demonstrates that no party wins or loses before the Supreme Court every time. The court adheres to the Constitution and weighs each case on its merits. It should continue to do exactly that.”
As the current court’s Dr. Frankenstein, McConnell can be excused for running to the defense of the monster he created. But it should simultaneously be acknowledged that our boy is, as usual, full of baloney.
McConnell, along with his old pal, rapist and former president Donald J. Trump, share responsibility for converting the Supreme Court into a wholly-owned subsidiary of the Federalist Society, a far-right outfit that maintains interpretation of the Constitution should be limited to James Madison’s words despite societal changes over the last, oh, 235 years or thereabouts. Kind of like sticking to the horse and buggy when you have the keys to a Bentley in your hand.
Utilizing every underhanded and despicable means at his disposal — the record is quite clear on this — McConnell stacked the court with candidates carrying the Federalist Society seal of approval, bypassing all standards of honor and fair play in doing so. He invented a “rule” out of thin air to keep an Obama nominee — current Attorney General Merrick Garland — off the bench in favor of Justice Neil M. Gorsuch and then threw that very same rule out the window to push through the nomination of Justice Amy Coney Barrett. With Justice Brett Kavanaugh, a historic lightweight, he staged a bogus inquiry into sexual abuse claims before carting him across the finish line.
By the way, has anyone ever found out who paid off Kavanaugh’s debts, which may have reached $200,000? Anybody? ...
In his lecture masquerading as an op-ed — and here, let’s note that McConnell, in his book, The Long Game, attributed at least some of his antipathy toward former President Barack Obama to his propensity to lecture (physician, heal thyself) — the GOP leader provides only a teeny-tiny reference to the very real ethics problems consuming the Supreme Court and his steadfast efforts to do absolutely nothing about it.
It’s been reported that at least two of the justices — Clarence Thomas and Samuel Alito, who should be thanked by the Merriam-Webster folks for providing a new definition to the word “snide” — have taken advantage of some high-faluting pals by going on very nice excursions on their friends’ tab, at a cost of thousands, if not tens-of-thousands, of dollars. Oh, then they failed to report these jaunts on their financial disclosure forms. In the case of Alito, his adventure included a hedge fund billionaire with business before the court. Alito didn’t recuse himself from the case.
It isn’t just the right-wingers on the court raising eyebrows. Justice Sonia Sotomayor failed to recuse herself from a case involving the publishing house that paid her $3 million for her memoirs. And it’s been reported that her staff pressured officials at her lecture appearances to purchase a large number of that very same book.
Given that and other incidents, the court has been pushed to adopt a code of ethics, an undertaking it just hasn’t managed to get around to even though lower courts in the federal system have ethics rules to follow. Given the court’s failure to proceed, Sen. Sheldon Whitehouse (D-RI) is sponsoring legislation to require the justices to “adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.”
The measure passed out of the Senate Judiciary Committee on Thursday in an 11-10 vote – every majority Democrat voted for it, while all 10 Republicans were opposed.
“Today, Democrats are trotting out the latest pretext for their ongoing campaign to undermine the Supreme Court,” McConnell said in a tweet. “The people who love to warn about defending democracy want to shatter the independence of a co-equal branch of government. Senate Republicans won’t let them succeed.”
Oh, that Mitch, sticking up for his boys and girl who, you know, just don’t want to put up with that icky ethics stuff which might keep them from a luxurious trip courtesy of someone else’s credit card. If the court won’t do it, why shouldn’t Congress, despite the separation of powers concern? Lawmakers have plenty to say about court operations, including setting the budget for the judiciary branch, which is seeking $9.1 billion from Congress for FY 2024, Why can’t the House and Senate then tell the nine justices to quit soiling the nest and adopt an ethics code?
It’s not the Democrats who are campaigning to “undermine the Supreme Court,” as McConnell asserts. It’s the court itself. A Marquette University Law School poll released in April showed that only 41 percent of those questioned approve of the court, which was once the nation’s most trusted institution.
In the wake of the infamous Dobbs decision from the previous term, which revoked abortion rights in existence since 1972, the court went on its merry way nullifying previously settled issues like affirmative action in its Students for Fair Admissions decision. On at least four occasions, beginning with Bakke in 1978, the court upheld the authority of institutions of higher learning to base admissions, at least in limited part, on a student’s race. On the fifth try, despite those precedents, the court took a U-turn even though the facts haven’t changed.
So much for stare decisis. Even though Gorsuch, Kavanaugh, and Barrett testified at their respective Senate confirmation hearings that they honored precedent, they were among those telling affirmative action to take a hike. They did so in Dobbs the previous term as well..
And they have a tendency to … how shall this be put … just make stuff up as they go along. The Biden administration intended to implement a forgiveness program for those holding student loans up to a certain amount. The president assumed they could do this because of the congressionally-approved Heroes Act which authorized the secretary of education to forgive loans in such a fashion in case of a “national emergency” – the emergency here being the COVID-19 pandemic.
But the court’s conservative majority nixed the whole deal under some newfangled fantasy they dreamed up called the “major questions doctrine,” which holds that Congress needs to be clear in its desire to authorize agencies to act on issues of major significance.
No, you won’t find the doctrine in the Constitution. Basically, it holds that an act be damned if we don’t like it.
Such is the world created by one Addison Mitchell McConnell. He may tell you the Supreme Court is emitting an aroma as sweet as a red rose when it’s actually discharging a stench like – well, use your imagination.
Written by Bill Straub, who served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. Cross-posted from the Northern Kentucky Tribune.