Thoughts on Mitch’s switch

Anyone familiar with Senator Majority Leader Mitch McConnell’s political career could not have been surprised by his announcement yesterday that his justification for denying Supreme Court nominee Merrick Garland a hearing in 2016 was purely situational:

Attending a local Chamber of Commerce luncheon in Kentucky, McConnell was asked: “Should a Supreme Court justice die next year, what will your position be on filling that spot?” Appearing to bask in the moment, McConnell drank from what looked to be an iced tea, and smiled. “Oh we’d fill it,” he said. The audience laughed.

Highlighting McConnell’s shameless hypocrisy will have limited practical import, because his very shamelessness inoculates him from charges of shameless hypocrisy. (That’s not to say that Democrats shouldn’t call him out, only that they shouldn’t expect votes to shift in response.) The interesting question, then, is why McConnell felt so comfortable saying the quiet part loud, at a time when the question of an election-year Supreme Court vacancy is (to the best of our knowledge) hypothetical, and there is no political benefit to broadcasting your future plans. Democratic presidential candidates have been floating proposals designed to offset the effects of the Garland snub, and the Trumpist takeover of the federal judiciary more broadly. McConnell’s confession will complicate efforts to write off such proposals as the whining of sore losers. Why not simply give a non-committal answer now, rather than announce your plans in the style of a James Bond villain? Here are some possibilities:

• McConnell felt comfortable speaking in front of a friendly audience, and forgot, much as Mitt Romney did in his infamous “47 percent” remarks, that his words might carry outside the room in which he spoke them.
• McConnell assumed that there would be no negative consequences. After all, Senate Democrats won’t have the votes to block a Supreme Court nominee, and no amount of hell they’d raise could change that state of affairs. The people who would be bothered by McConnell’s hypocrisy never expected him to follow his own dubious precedent; to them, he is who they thought he was. And any Republican voter who cares about the Supreme Court would tolerate McConnell’s hypocrisy if it meant cementing control of the Senate for the next few decades.
• Perhaps McConnell has inside information about a potential retirement, thereby making the questioner’s hypothetical less hypothetical. But this scenario seems unlikely. If either of the older Democratic-appointed justices, Stephen Breyer and Ruth Bader Ginsburg, were in danger of being unable to serve through President Trump’s current term, Mitch McConnell is the last person with whom they would share that information. The Republican-appointed justice closest to retirement, Clarence Thomas, has evinced no interest in stepping down, and why would he, when he’s still able to write separate opinions serving up meat too red for even his fellow arch-conservatives to join? Again, there’s seemingly no reason for McConnell to announce his plans in advance of an actual vacancy.

So what should Democrats do in response? Highlight the hypocrisy, if for no other reason than to have it on record that someone noticed. But more importantly, push the judicial reform proposals. The Supreme Court’s size has been set at nine for more than half of this nation’s history, and any proposals to alter that size, or the process by which vacancies are filled, will be inherently controversial. If you want Mitch McConnell to pay a price for playing constitutional hardball, build public support for measures that demonstrate your credible commitment to playing hardball as well.