“I love the tax bill and a lot of the other things we did…but I think lifetime appointments — not only to the Supreme Court but to the circuit courts — are the way you have the longest lasting impact on the country.”
-Senate Majority Leader Mitch McConnell (R-KY)
With the impeachment inquiry into President Trump’s dealings with the Ukrainian government occupying much of the current news coverage and bandwidth in Congress, Senate Majority Leader Mitch McConnell (R-KY) contends that the people’s business is being obstructed.
The catch is that the Senate Sen. McConnell leads has made no indication that it is interested in much more than continuing to empower other branches through the nominations process.
The lead quote is a telling reason why. The majority leader of the United States Senate believes his chamber can achieve the most significant public policy change not through debating and legislating constituents’ interests, but by using his party’s majority position to shift the balance of an unelected branch of government to achieve those outcomes.
The Senate recently confirmed its 150th judicial nominee since President Trump took office — far outpacing the 96 nominations that President Obama and Senate Democrats confirmed over the same time period.
When compared to other activity in the upper chamber, the data show that the Senate cannot walk and chew gum at the same time. The Senate’s preference for confirming judicial nominees comes at the cost of legislating.
R Street Institute Senior Fellow James Wallner points to amendments as a key metric. According to Wallner, “senators have offered 90% fewer amendments in the 116th Congress than they did in the 115th” and points to a Washington Post-ProPublica study finding that amendment votes have “shrunk to an all-time low under McConnell, less than 20 percent of all roll calls, from 67 percent 12 years ago.” Amendments are a key tool senators use to shape legislation, but if there is no legislation to speak of, these amendment data become the jarring-yet-unsurprising result. The Senate is transforming into a 100-member human resources department for the other two branches.
What makes matters worse is the view inside Congress that the courts are the true venue for action is thoroughly bipartisan. Democratic members of Congress have also shown their inclination for judicial supremacy by reviving the issue of court packing — increasing the number of justices sitting on the Supreme Court — should they win the White House in 2020.
Democratic presidential candidate Sen. Kamala Harris (D-CA) sounded a similar tone to Sen. McConnell, defending her openness to court packing should she be elected president by arguing the “most critical issues of our lifetimes, before and in the future will be decided by that United States Supreme Court.”
Again, the implication is that a senator cannot directly act on issues ranging from immigration to health care to climate change. For real solutions, the American people should wait to elect a Republican or Democratic president to nominate judges and a Senate majority who will vote to confirm them.
The sliver of hope is that while this view appears to be dominant in Congress, it is not unanimous. Sen. Susan Collins (R-ME) has recently asked Sen. McConnell to “turn the Senate’s focus toward legislation, rather than nominees.” Sen. Cory Booker (D-NJ) also bucked the growing fondness for court packing in his party, warning that he “caution[s] people about doing things that become a tit for tat throughout history.”
For countless young Americans concerned about the direction of the country, getting Congress to re-engage its legislative vigor should be cause for concern as major political issues continue to go unanswered. The courts have a place in our system, but Assumption College political scientist Greg Weiner wisely notes that “excessive deference to judges — especially on the grounds that politics should never contaminate constitutional questions — too easily lets elected officials and, in the end, the people they represent off the hook.”
To reform the insufficient response from Congress on defining generational issues, changing their inclination toward the judiciary is a necessary starting point.
