"McConnelled": the Supreme Court Gerrymander

So if you follow the news, you might be forgiven for thinking Mitch McConnell is an evil genius.

So back when Supreme Court Justice Antonin Scalia died, Democrat Barack Obama was President of the United States with about a year left in his term.

Yet, when Scalia's replacement was finally confirmed, it was done by the new Republican President Donald Trump.

As many have pointed out, this seems well odd. Or to use the democrats term for it....this seems like stealing a supreme court seat from the Democrats to be filled by a Republican.

And it is.....even the man responsible for doing it, Mitch McConnell would agree to that.

Granted McConnell would feed you a bullshit line about needing to uphold the balance of the court (Scalia being a conservative and all, and Obama likely to have appointed a liberal), but he'd agree on the principle.

But what makes Mitch McConnell seem like an evil genius is that, in getting Neil Gorsuch (Donald Trump's nominee) confirmed to the Supreme Court, he destroyed the Filibuster for Supreme Court nominees, preventing the Democrats from being able to block the nomination indefinitly, as McConnell himself had done to Merrick Garland (Obama's nominee who wasnt confirmed).

In fact this is the interpretation many of the mainstream, right wing and left wing media are all taking (granted the Right wing points out its genius, and the left calls it evil but still again they agree on the core idea). Per the media, Mitch McConnell is the man who prevented the president of the opposition party from filling a supreme court seat he was constitutionally allowed to fill and turned that seat over to his parties president to fill it instead.....while also destroying the mechanism the opposition party could use to do the same thing to his party.

There is however a small problem with this interpretation: It's not accurate.

Some parts of it are indisputable: McConnell DID prevent Obama from making an appointment...and held the seat open until his party held the White House.
McConnell also nuked the filibuster.

The problem is....these two things are not the same, nor really connected.

See the filibuster was a method for the minority party to prevent anything from happening.
However at the time Garland was nominated by Obama, the Republicans were the majority party.

So to stop Garland, they didnt filibuster his nomination.

Instead they just flat out refused to hold vote (or even a hearing) on the man.

Now they did this, because the truth is, they couldnt come up with a politically viable reason to vote against him if he came up to a vote. And as McConnell repeated pointed out, this all happened in an election year.

Which was part of the problem....if Republicans voted for an Obama nominee they were afraid they would be used against them in election ads. At the same time, if they failed to vote for a obviously qualified nominee it would be used against them in election ads.

So no matter how they voted, they believed they would get screwed. So they found a way out. Dont vote. Its a bit harder to hold people accountable for things they didnt do, a belief, that given the GOP gained the white house while holding the senate was seemingly verified.

Now this may all seem irrelevant...after all according to most media reporting, this cant happen again...McConnell completed his genius plan by nuking the filibuster and getting Gorsuch on the court.

Except again....the Filibuster is a tactic where the minority stops a vote from happening.
Whereas McConnell invented a new tactic where the majority stops a vote from happening.

And well, quite frankly there is nothing preventing it from happening again.

Assuming anyone who reads this blog is a conservative and thrilled with how Trump got to put a right winger on the court, let me ask you a question: If the democrats take the senate in 2018 and their's another vacancy or two on the Supreme Court, what exactly do you think the chances are Donald Trump is going to get to fill those?

Thanks to Mitch McConnell new invention, its basically zero. Democrats would be guilty of political negligence and malpractice if they allowed Trump to make any supreme court appointments when they held the senate.

Afterall. Mitch McConnell did prove the court works just fine when its not full thanks to what he did to Merrick Garland. So there is no pressing rush to ever put a new justice on the court.

Furthermore, now that the senate has no reason to ever allow a hearing on an opposition presidents nominee, even Senate election in affect determines the future of the supreme court, will vacancies be allowed to be filled.  And the justification for not holding hearings on Garland is it was an election year. And every other year is an election year for the senate.

So if the president and the senate arnt held by the same party, I guess we cant nominate Supreme Court Justices in the presidents 2nd or 4th (and 6th/8th if hes a two termer) year.

Actually its probibly worse than that....you know how everyone is making a big deal about Donald Trump's first 100 days? the same way they made a fuss about Barack Obama and George W's first 100 days?

Well the idea of the "First 100 days" is that thats really all the time there is until the next election cycle kicks off. So its not much of a stretch for an opposition senate to say they cant consider a presidents nominations after that 100 day period...cause you know, its an election and all.

And actually (the argument will go) the Supreme Court is so important we cant afford to compromise on a nominee at any time....so I guess we can never hold a hearing for an opposition president.

What I'm getting at is, thanks to Mitch McConnell we are going to see a whole lot more Merrick Garlands in the future, and we are going to need a term for them....and I think I have an idea.

The closest thing I can think of to this situation, when one party tries to take political power in a blatantly unfair and unintended fashion is the Gerrymander. This is of course when the congressional districts are drawn in such a way as to make it impossible for the opposition party to win no matter the actual voter support.  

Now what you may not know is that the term Gerrymander takes it name from the former Vice President of the United States (under James Madison)  Elbridge Gerry. As Governor of Massachusetts Gerry had signed a law allowing the redrawing of congressional districts in unorthodox shapes (one of which looked like a salamander) to benefit the Democratic-Republican party.

In that vein I suggest the term for a Supreme Court Nominee who never receives a hearing by the Senate (because its held by the opposition party to the president) is to say that nominee got "McConnelled"

So Merick Garland is the first nominee in history to be "McConnelled" but he wont be the last.

Now eventually its true, we will likely stop seeing nominees being "McConnelled" but thats likely going to be because Presidents are going to stop bothering to make the nominations in the first place. Meaning we are going to wind up with long chunks, possible as long as 8 or more years, in which it wont be possible to fill vacancies on the Supreme Court and no ones even nominating people to fill those spots.

I suggest the name for this period should be the "McConnell period".

So if the Democrats win the senate in 2018, we will enter a "McConnell period" that will last at least 2 years.....though its possible it even lasts 6 if Trump wins reelection and the Dems continue to hold the senate. And heck the "McConnell period" could last even longer than that. Between 1933 and 1981 the democrats held the senate for that entire 27 year period....which also included 14 years of Republicans Presidents.

Or, to use more modern example, of the currently serving members of the Supreme Court, only John Roberts, Sam Alito, Sonia Sotomayor and Elena Kagan were nominated outside a "McConnell" period.  (note in an ironic twist, Antonin Scalia himself would never have been on the court, he was also an McConnell Period nominee).

And heres the thing, with the "McConnell rules" in effect, there currently wouldnt have been a vacancy on the court, as Barack Obama would have nominated 5 other justices as well during the 6 years his party held both the senate and white house.

Which would mean the current balance of the court would be 7-2 in favor of liberals.

Which sounds great for liberals....but who knows when the next non "McConnell" period is going to happen...next time if could be 7-2 or 8-1 in favor of the conservatives once the president of the senates party gets to fill all the open vacancies


And heres the real kicker....there is no way to fix this problem short of both sides agreeing to do something politically stupid and allow an opposition president to make an appointment:  a constitutional amendment requiring a senate hearing on all presidential nominees.

So you better get used to nominees being "McConnelled" and long extended vacancies on the Supreme Court during possibly near decade long "McConnell periods".