Once again, Mitch McConnell’s hypocrisy on an independent judiciary knows no bounds

In remarks given on Oct. 14 to the Heritage Foundation, Senator Mitch McConnell accused Secretary of State Anthony Blinken of engaging in “crazy or scary” behavior during an official visit to Ecuador. The behavior that McConnell found so disturbing was the secretary’s chastising of the Ecuadorian government for attempting to subvert the independence of its judiciary. This accusation, McConnell bristled, while Joe Biden’s own presidential commission on court reform threatens “the very concept of an independent and insulated judiciary.”

It was but the latest reminder that one can never overestimate the level of hypocrisy which McConnell is capable of demonstrating. When you think he has reached a level beyond which even he has the decency not to venture, McConnell makes you think again. The truth of the matter is that Biden’s commission is primarily the consequence of McConnell’s decade-long crusade to make the judiciary at all levels the legal arm of the Republican Party, so that partisan courts can provide ultimate assurance of Republican hegemony, even as the party becomes more and more a minority of the American polity.

If McConnell’s ideal is an independent judiciary, why did he impose such a virtual blockade against the judicial nominees of Barack Obama, if not to ensure there would be a maximal number of openings for the next Republican president to fill? Why did he sit on Merrick Garland’s nomination in 2016 for nearly a year? McConnell claimed that, it being an election year, we had to wait until the American people weighed in by their votes. Of course, there is nothing in the Constitution nor the rules of the Senate mandating that. Indeed, there is nothing that gives the Majority Leader of the Senate the power to determine which nominee does or does not get a hearing. One invokes such an arbitrary standard only if one is trying to control the ideological/partisan make-up of the Court. Which became all too evident when the sudden death of Ruth Bader Ginsburg created an opening on the court during the late stages of the 2020 campaign. Suddenly McConnell had no use for his 2016 rule about heeding the voice of the American people, and nothing more was heard of it. Instead, the majority leader, with reckless abandon, secured Amy Barrett’s appointment on a party-line vote. So much for an independent judiciary.

Secretary Blinken’s comments about the pressure on Ecuadoran courts were made in the context of the threats to democracy that such coercion constitutes. Of course, McConnell dare not consider that larger context, because it would force him to recognize the parallel war on democracy that is occurring in our own country, in which McConnell is playing a crucial role. Twice the majority leader refused to act as an impartial juror in convicting Donald Trump of his grave abuse of power, first in extorting an ally to interfere in our 2020 election, and then, a year later, in attempting to overturn that election, which conspiracy culminated in the January 6 insurrection. In the first impeachment, McConnell was brazen enough to work openly with the White House in avoiding conviction. In the second trial, the leader invoked the specious claim that the Senate could not try someone no longer in office. McConnell failed to point out that he himself was responsible for delaying the trial until after Trump was gone.

McConnell then compounded that latter dereliction of duty by filibustering the establishment of an independent commission to investigate January 6 and the events that led up to it. The now minority leader saw no need to get to the bottom of an attack that had threatened the survival of the very republic itself. His latest anti-democratic deployment of the filibuster was to prevent the Senate majority from passing vital legislation needed to nullify laws which Republican-controlled state legislatures have passed to suppress voting and to assure partisan certification of election results.

Thanks to the packing of the courts during McConnell’s mis-reign as majority leader, the judicial system is badly in need of reform, precisely to re-establish the judiciary as an independent and co-equal branch of government, unbeholden to any particular political party.

Robert Emmett Curran is a Professor of History Emeritus from Georgetown University. He lives in Richmond.