Call it the McConnell Rule: Might makes right. Having the power to do something is sufficient reason to do it. And, in the context of a Supreme Court nomination, that rule could mean rushing to confirm or partisan paralysis — whichever helps the party in the immediate term, and the longer-term consequences be damned.
In the case of current nominee Brett Kavanaugh, the partisan imperative is to get another movement conservative onto the high court. That need comes with a sense of electoral urgency: The midterm elections are little more than five weeks away and, while the Senate map gives the GOP a sizable advantage in holding the chamber, there is a nontrivial chance that Democrats could retake it. The only way to ensure that a reliable conservative fills the seat is to confirm one before November.
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Thus, despite the specter of Clarence Thomas and Anita Hill hanging over Dr. Christine Blasey Ford’s and Brett Kavanaugh’s testimony on Thursday, the Senate majority pressed ahead, using prosecutorial pinch-hitter Rachel Mitchell as their interlocutor rather than risk the poor optics of a lineup of insensitive men clumsily interrogating a sexual assault survivor. But, despite their best efforts, as with the landmark hearings 27 years ago, this showdown has become a broader gauge of how society handles issues of sexual harassment and assault.
McConnell’s political imperatives, though, are the primary factor from which everything else flows. The grudging accommodation of giving Ford an open hearing? Less a concession to Democratic questions about Kavanaugh’s fitness than political cover for potentially wavering Republican votes, since two defections could sink the nomination. The complaints about Ford’s allegations surfacing in the 11th hour, the flat refusal to ask the FBI to engage in an investigation into her allegations and the lack of interest in subpoenaing Mark Judge (the other man Ford has named as helping assault her) are all about the electoral timeline and the fear of a Democratic majority.
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Anything more than a sop of an investigation into Ford’s allegations could push a potential confirmation vote past the GOP majority’s expiration date. “I’ll listen to the lady, but we’re going to bring this to a close,” South Carolina Sen. Lindsey Graham, one of the Silent 11 on the Judiciary Committee, told The Washington Post last week, neatly encapsulating the GOP position. He was prepared to do the bare minimum necessary to shore up his wavering colleagues and, presumably, suburban women voters before proceeding to the foregone conclusion.
The Republican majority nonetheless fell on the short end of reasonableness test: In the face of credible charges and powerful testimony from a compelling witness, GOP senators are unwilling to engage in a real investigation — and one from the FBI is standard — that they have prejudged as pointless.
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“Unless something new comes forward, you have just an emotional accusation and an emotional denial without corroboration,” Graham said on Thursday. He won’t budge unless new evidence is produced but he is adamant that new evidence should not be sought. “I ask you to judge me by the standard that you would want applied to your father, your husband, your brother or your son,” the angry Kavanaugh told the committee Thursday. Grassley and Kavanaugh repeated one another during the hearing that “the FBI does not reach conclusions,” as if that statement in itself put to rest the very idea of such an investigation. But what FBI does do is gather facts and evidence with which the committee could reach conclusions.
And Sen. Chuck Grassley, the Judiciary Committee chairman, griped when ranking member Dianne Feinstein, D-Calif., mentioned that yet other women have come forward with stories similar to Ford’s. “We’re here for the sole purpose of listening to Dr. Ford, and we’ll consider other issues other times,” he admonished. Other times? The committee is scheduled to vote on Kavanaugh’s nomination on Friday.
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Given Grassley’s, McConnell’s and Trump’s preferences, those “other times” will never arrive. All of this is window-dressing until the GOP exercises its power to install Kavanaugh onto the court.
That’s all this is, once the hearing room lights dim and the GOP-set clock runs out: An exercise in dominance. It’s the same play that Republicans ran against Obama nominee Judge Merrick Garland two years ago, even if the specific tactics are the opposite. When it was a Democratic president trying to replace a Republican-nominated jurist, the partisan need was to protect a seat which had been held by a conservative jurist. So Garland got nary a hearing, let alone a vote. Then, as now, conservatives tried to cloak the power-play in terms of (invented) high principal. But their actions stemmed from the meeting of partisan need and available power.
That’s why the same party which stonewalled Garland can work itself into high dudgeon over the mere possibility of slightly delaying Kavanaugh. “The president wants this process to come to a vote because that’s what’s supposed to happen in every single one of these instances where someone is nominated, they go before, they have a hearing, and then the senators vote on it,” Sarah Huckabee Sanders asserted on “Fox and Friends” this week, pretending that Garland never existed.
McConnell’s defenders will try to situate his behavior within a bipartisan spectrum of deteriorating Senate norms. It was the Democrats under Senate Majority Leader Harry Reid, after all, who initially nuked the judicial filibuster below the Supreme Court level; McConnell finished the job in 2017 in pushing Neil Gorsuch onto the court.
The Republican leader has embraced and accelerated his chamber’s downward spiral first, putting the rise of the filibuster onto steroids, supporting the legislative terrorism of debt-ceiling showdowns, sandbagging Garland and now preparing to ram Kavanaugh through without a proper vetting. He is, as my former colleague Pat Garofalo put it, “Mitch McConnell, destroyer of norms.”
And the short-sightedness of the power-über-alles approach is manifest: It not only hurts the country by making the political system more dysfunctional, but it hurts the party which will inevitably find itself in the minority again. Ask Democrats, for instance, if they regret ending the judicial filibuster.
Whether it’s in 2019 or further down the road, Republicans will regret normalizing the McConnell Rule. Sen. Mazie Hirono, D-Hawaii, has raised the possibility — shades of Garland — that Democrats could hold Anthony Kennedy’s seat open until after the 2020 election if they retake control of the chamber in November. That’s how this works: What was once outrageous behavior becomes the starting point for future fights.
Or, as Kavanaugh said in his opening statement Thursday: “What goes around comes around.”