Our country faces a potential political crisis—and Mitch McConnell’s rush to replace retiring Supreme Court Justice Anthony Kennedy is about to make it much, much worse.
I’m not referring to the Senate GOP’s eagerness to vote on a nominee only months, or weeks, before an election. This is hypocritical, given the way they treated Merrick Garland. But it’s unsurprising given the way McConnell and his caucus have conducted themselves for a decade or more.
Instead, I’m talking about the Russia investigation. There is a chance, far from certain but also far from unlikely, that we will soon be forced to consider the following question: Is Vladimir Putin allowed to rewrite the Constitution of the United States?
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Of course, it’s always possible that sometime this fall, special counsel Robert Mueller’s team will announce that results of their investigation into Russia and the Trump campaign has turned up nothing shady. Those Trump Tower meetings really were about adoption. The president’s fondness for Putin is due to bromance and not blackmail.
But it’s also quite possible that there is fire behind the smoke. Consider the following alternate scenario, one entirely plausible given what we currently know: Russian spies handed over stolen intelligence to the Trump campaign. The Trump campaign promised Russia something (an easing of sanctions, for example) in return. And Trump himself knew about it. Such findings would describe actions that fall somewhere between collusion and outright treason. It would trigger the most dire political crisis in modern American history.
If Justice Kennedy’s replacement has already been confirmed, that crisis would spread to the judiciary as well.
Discovering that our commander in chief was secretly in cahoots with a foreign government would be unprecedented, but at least the Constitution gives us straightforward next steps when it comes to the executive branch: Impeach the president. If the president and his congressional allies block impeachment, vote them out.
When it comes to the judiciary, however, the options are far messier. What do we make of the judges a compromised president has already seated?
What should happen in such a scenario seems clear. A justice who cares more about the judiciary’s integrity than his or her position ought to resign so that an uncompromised president can fill the seat. (Under such a scenario the same justice might well be re-appointed, preserving the court’s makeup while protecting its legitimacy.)
What would actually happen, however, is more tenuous. A judge appointed by a president, even one who’s election has been clearly proven illegitimate, has no constitutional obligation to step down. Republican senators could theoretically join their Democratic colleagues and remove them from the bench, but in practice that’s not going to happen. Certainly, there is nothing in McConnell’s history to suggest he would consider it.
Instead, we’d find ourselves in a judicial-political madhouse. Suppose Mueller finds evidence of collusion or worse. If the Trump-appointed justices stay put, every ruling they hand down would be colored by the actions that led to their appointments. American constitutional law would be reshaped by 5-4 rulings that would, without Vladimir Putin’s efforts, have gone the other way. Given the age of most judges on President Trump’s short list, Putin’s impact on America’s legal landscape would far outlast the Russian autocrat himself.
Keep in mind, none of this is happening in a vacuum. The court is already closer to a legitimacy crisis than much of America’s political elite would care to believe; 5-4 decisions like Bush v. Gore, Citizens United, and Shelby County have reinforced the impression that the conservative majority cares more about consolidating Republican power than fairly interpreting the Constitution. Americans accept that the court is designed to be insulated from the people’s whims, but justices’ longer-than-ever tenures make the institution appear deaf to the people’s will. For a while, Justices Roberts and Kennedy protected the court’s reputation with big decisions on Obamacare and marriage equality. But those days appear nearing an end, if not over already.
The GOP certainly thinks so. Conservatives have abandoned even the pretense that the Supreme Court should be something other than an extension of the Republican Party. It’s not just blocking Garland’s nomination or invoking the nuclear option to confirm Neil Gorsuch by simple majority vote. In Justice Roberts’ famous analogy, judges should be umpires calling balls and strikes. But McConnell, ordinarily quite disciplined, can’t help but publicly gloat after every court ruling that goes in his party’s favor. When Justice Kennedy retired, he acted as though he’d just gotten first pick in the draft.
It’s no wonder he’s pleased. So far, his bet is paying off. But allowing one of America’s fiercest adversaries to fundamentally reshape American law? For those not already on Team Mitch, that would be a bridge too far.
At some point, the GOP will lose its grip on power. If a justice is confirmed before the Mueller investigation is complete, and it turns out Trump’s debate-night claim of “no puppet” was a lie, the next Democratic administration will have every reason to make restoring faith in the Supreme Court a top priority—and given the history, they’re unlikely to feel restrained by political precedent. Instead, they’ll be joined by independents, and possibly even some Republicans, who care more about reforming the court and preserving its popular legitimacy than using it for maximum political gain.
Which is why, even if McConnell does not care about the hypocrisy of rushing through a Supreme Court confirmation in an election year, he should slow down. If the president is exonerated in the Russia probe, he’ll be free to pick a conservative justice without any lingering questions. If the president was involved in collusion or worse, surely Mike Pence will be there to pick up the slack.
Instead, in the interest of grabbing yet more power, Senate Republicans risk linking Trump’s Supreme Court justices inexorably with Vladimir Putin. If that happens, the Mueller investigation won’t just deal a body blow to the Trump presidency. Thanks to GOP recklessness, it will also send shock waves through the judiciary, threatening both McConnell’s country and his legacy in the senate.
Let’s hope he cares enough about at least one of those things to wait.
