How Mitch McConnell destroyed the independent federal judiciary
Sen. Mitch McConnell announced that he will not seek another term as leader of the Senate Republicans, stepping down from the post (though not his seat) in January 2025. McConnell will leave a legacy of extreme obstruction, having pioneered new ways to paralyze the upper chamber in an effort to stymie Democratic legislation. He also regularly kowtowed to Donald Trump, even voting to acquit the former president following his impeachment trial over the Jan. 6 insurrection. But McConnell’s most indelible mark on history is likely to be his fixation on stacking the courts with far-right ideologues, thus fundamentally refashioning the federal judiciary in the image of the modern GOP.
On an episode of “Amicus,” Dahlia Lithwick and Mark Joseph Stern discussed the wrecking ball that McConnell took to the independent federal judiciary and its enduring impact on American democracy and civil rights. Their conversation has been condensed and edited for clarity.
Dahlia Lithwick: Mitch McConnell announced that he’s stepping down as the leader of Senate Republicans in the near future.
Mark Joseph Stern: What was your first reaction?
Lithwick: My first reaction was that I hate this timeline so much. It’s the timeline where we have to miss Rep. Kevin McCarthy because the person who followed him was, as sure as night follows day, vastly crazier. That’s how I feel about McConnell. This is the person who single-handedly did more to destroy Senate norms of comity and respect, to help Donald Trump evade accountability, and to steal and pack the Supreme Court with people who should not be sitting on the court. And still, in this moment, we’re going to have to thank him for respecting the vestigial norms that he did and not being an utter sociopath each and every day. Because the person who follows him will be worse.
Stern: I’ll add that, in my view, no one has done more to destroy the federal judiciary than Mitch McConnell. This is the guy who, under Obama, decided to block as many judicial nominations as possible, for no reason other than to leave the seats open so Trump could come in and fill them. This is the guy who violated every known norm to hold open Justice Antonin Scalia’s seat, ostensibly because it came open in an election year, only to fill Justice Ruth Bader Ginsburg’s seat when people were already voting in the 2020 election. I think he made a lot of Americans wake up and realize that he had no principles to begin with.
But even more than that, Mitch McConnell was the guy who realized you don’t need to win elections to enact Republican policy. You don’t need to change hearts and minds. You don’t need to push ballot initiatives or win over the views of the people. All you have to do is stack the courts. You only need 51 votes in the Senate to stack the courts with far-right partisan activists like Aileen Cannon and Matthew Kacsmaryk. And they will enact Republican policies under the guise of judicial review, policies that could never pass through the democratic process. And those policies will be bulletproof, because they will be called “law,” and Democrats will need at least a century to win back the courts.
Anyone who believes in an independent judiciary with any integrity should loathe McConnell to their bones.
Lithwick: McConnell, for so many reasons, stands out as somebody who knew exactly who Donald Trump was, exactly what happened on Jan. 6, exactly what his responsibility was in that moment. And he didn’t do it. He normalized the idea that you can mumble stuff and do nothing. Then we all live with the consequences. He made it easier for whoever follows him to do even less. And now he’s being praised as some elder statesman? Really? He’s totally morally bankrupt. The only silver lining, Mark, is that whoever follows him will not be as good as him at this crap.
Stern: I agree. Under Trump, McConnell built the most impressive and efficient judicial confirmation machine ever seen. He really helped to keep the broader Republican Party and conservative movement behind Trump by saying, “don’t worry, we’re still getting all the right judges!” He pushed them through at a record clip. Aileen Cannon, the judge thwarting Trump’s trial over the Mar-a-Lago documents, was confirmed after the 2020 election, when Trump had already lost! This went on right up until the end.
McConnell’s successor will still strive to get crazy people on the bench. And sure, they might get 20 percent fewer judges through, because they won’t have the same ruthless efficiency. But Republicans will take that deal, because it only takes one insane district court judge to thwart an entire presidency.
This piece first appeared in Slate.