Even before President Donald Trump announced his nomination of Amy Coney Barrett for the Supreme Court, Senate Majority Leader Mitch McConnell had indicated his intention to rapidly approve the nominee without consulting his Democratic colleagues. With Judge Barrett’s nomination in hand, McConnell remains determined to shepherd a confirmation process faster than any in the modern Court’s history.
McConnell’s plans for this nomination fell in line with a consistent pattern of behavior on his part that has destroyed the Senate as a functioning democratic institution. The Framers created the Senate as a body that would maturely seek the public good through reasoned deliberation and without regard to party identity. McConnell has turned it into a body that reflexively serves partisan ends, regardless of the public good. He simply does not permit the mature deliberation contemplated by the Framers.
When Senate action does not suit Republican interests, McConnell simply refuses to allow any voting or deliberation at all.
When Senate action does not suit Republican interests, McConnell simply refuses to allow any voting or deliberation at all. Take the effort to address the coronavirus. In May, McConnell refused a request to negotiate a new round of legislation to address the pandemic. So, the House passed the HEROES Act, which would extend employment benefits, fund coronavirus testing and contact tracing, keep the post office alive, and provide aid to state and local governments suffering from huge revenue declines in COVID’s wake to ward off massive layoffs and cuts in vital services.
McConnell refused to let the Senate debate, amend, or vote on the bill even as COVID deaths reached new heights.
In 2019, when the U.S. House passed a long-overdue reform of our nation’s voting and campaign finance system, McConnell refused to allow his fellow Senators to debate or vote on it. Key elements of this bill--non-partisan redistricting and mandatory disclosure of dark money campaign spending--are broadly popular among Democratic and Republican voters alike, but McConnell called them “half-baked socialist proposals.” His only lens is one of partisan warfare, so if making it easier for Americans to see who funds candidates might make it harder for Republicans to win, then he is against it.
McConnell acquired the nickname Moscow Mitch by refusing to allow a vote on legislation setting standards to protect our voting systems from foreign hacking. Even though a foreign power changing vote counts would in effect control America, McConnell would not permit a vote on measures to combat this national security threat.
McConnell applies the same approach to the Senate’s responsibility to advise and consent to nominees for high office. The current postal service debacle has its roots in McConnell’s decision to refuse a vote on President Obama’s nominees for the postal service’s Board of Governors. When Senator Bernie Sanders blocked votes on two of Obama’s choices, McConnell responded by blocking votes on the other seven, leaving all nine seats vacant when Obama’s term ended. McConnell’s obstruction allowed President Trump to appoint the entire Board, and the Board then appointed Republican donor Louis DeJoy as Postmaster General.
McConnell’s refusal to let the Senate consider the Merrick Garland nomination in 2016 fits this larger pattern. For more than 200 years the Senate performed its constitutional role by vetting Supreme Court nominees and then voting them up or down. In Garland’s case, McConnell manufactured an excuse to avoid performing this role. With the presidential election still eight months away, he insisted that the American people should weigh in before the Senate did its duty.
By contrast, when Senate action does suit Republican interests, McConnell moves heaven and earth to act quickly—so quickly that deliberation is again impossible. With an election coming in a little over a month, McConnell abandoned the rule he created four years ago, this time rushing to approve whoever the nominee might be, discovering anew that the President gets a four-year term under the Constitution.
Finally, in the one instance where the Constitution formally mandates Senate action and even puts someone else in charge of the body’s proceedings--an impeachment trial of a president accused of high crimes and misdemeanors--McConnell short-circuited deliberation in advance by declaring his unwillingness to consider any relevant evidence.
When a President is impeached, the Constitution requires Senators to swear an oath to do “impartial justice” when they sit in judgment of his conduct. But when President Trump faced impeachment charges last winter, McConnell openly announced that he would violate this oath, saying that he was not “impartial about this at all” and promising a partisan outcome.
Consistent with his promise to violate his constitutional obligations, he not only voted against Trump’s removal, as is his right; he also saw to it that the Senate became the first in history to conduct a presidential impeachment trial without calling a single witness. McConnell simply refused to follow the constitutional norms designed to provide for careful deliberation on charges of presidential misconduct.
It is now apparent that friends of democracy need to disempower McConnell. If the Democrats win majority control with the two Georgia runoff elections, they should not hesitate to change Senate rules to prohibit McConnell from engaging in partisan obstruction.
If they do not, politicians hoping to restore democracy need to make a concerted effort to discourage these sorts of tactics, using whatever tools they have available.
David Driesen and Thomas M. Keck
David Driesen is University Professor at Syracuse University’s College of Law, and Thomas M. Keck is Professor of Political Science at Syracuse University’s Maxwell School of Citizenship & Public Affairs.