Permit me a question to every truly fair-minded person in our country. Imagine that one party packs the Supreme Court with ideologues and the other party does absolutely nothing in response. Isn't this abject surrender to an unscrupulous power grab?
This inquiry can no longer be ducked. Even those in the deepest denial can no longer ignore Senate Majority Leader Mitch McConnell's nakedly political aim of cramming the Supreme Court with justices who will undo more than seven decades of precedent. They'll do the bidding of corporate interests, undercut voting rights and empower billionaires to buy elections.
What McConnell said in 2016 to rationalize his decision not even to hold hearings on President Obama's nomination of Judge Merrick Garland to the court is now, to appropriate the word from the Nixon era, inoperative.
Back then, McConnell waxed all bourbon-and-branch about "tradition." He made the misleading claim that keeping a court seat open in an election year until a new president took office dated back to 1880. "The American people are perfectly capable of having their say on this issue, so let's give them a voice," he told us. He piously insisted that this was "about a principle, not a person."
What he embraced all along was what we can now call the Paducah Principle, named after the venerable Kentucky community whose Chamber of Commerce meeting McConnell graced on Tuesday.
Under the Paducah Principle, McConnell will use any method available to stuff the Supreme Court with young, right-wing nominees who will do the bidding of conservative interest groups regardless of what voters say in the next election — or the one after that, or the next one, or the next.
An attendee at the Chamber of Commerce event put an admirably unvarnished query to McConnell that created an exact parallel to 2016, when Justice Antonin Scalia passed away: "Should a Supreme Court justice die next year, what will your position be on filling that spot?"
"Oh, we'd fill it," McConnell said quickly, with that small smile of his. Court-packing — excuse me, loading the court with your ideological friends — is the one way you can set the nation's political course no matter what voters decide year to year. "You want to have a long-lasting positive impact," he explained. "Everything else changes. ... What can't be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of a judge is to follow the law."
Of course, "follow the law" for conservatives means the law back before the mid-1930s. Conservatives have long dreamt about salvaging what they call the "Constitution in Exile," a reading that lets courts eviscerate the ability of the legislative and executive branches (and state governments) to protect workers and regulate the economy — back to the days before Brown v. Board of Education, Roe v. Wade and the one-person, one-vote decisions.
McConnell enunciated the Paducah Principle a week after an exceptional investigative report by The Washington Post's Robert O'Harrow Jr. and Shawn Boburg about the battle for conservative justices "that will shape the nation for decades." The operation has been spearheaded by Leonard Leo, executive vice president of the Federalist Society, and a network of organizations that brought in more than $250 million in mostly dark money between 2014 and 2017.
"We're going to have to understand that judicial confirmations these days are more like political campaigns," Leo told members of an influential conservative group.
Thanks to the efforts of Leo, McConnell and those friendly anonymous benefactors, the courts are being packed, politicized and pushed hard to the right.
So what are we going to do about it? Mention the words "court packing" and many liberals and moderates wring their hands and fret about the Supreme Court's "legitimacy." But the court's "legitimacy" is already shot to hell. Remember the words "Oh, we'd fill it" the next time the justices hand down another reactionary ruling. The only relevant issue is what might be done to restore the court to something closer to, well, judiciousness.
Of the Democratic presidential candidates, Pete Buttigieg has the most articulated suggestion. It would involve enlarging the court to 15 members, with five justices chosen by each party and the last five picked unanimously by those 10 from the lower courts. Kamala Harris, Elizabeth Warren, Beto O'Rourke and Kirsten Gillibrand are among the other contenders declaring themselves at least open to court enlargement.
Good. Giving in to McConnell's manipulation of the judiciary is not principled restraint. It's cowardice.