What came first, the chicken or the egg?
The age-old logic question without an answer came to mind recently when someone proposed that the Supreme Court’s abortion-ending Dobbs decision was the product of an odd partnership between former President Donald Trump and the Republican Party’s ultimate establishmentarian, Senate Minority Leader Mitch McConnell. Naturally, most of the major media’s attention – and scorn – has been heaped upon Trump for having appointed Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, three of the “yes” votes on the majority’s opinion written by George W. Bush appointee Justice Samuel Alito.
The other vote for overturning Roe v. Wade and Planned Parenthood v. Casey was cast by conservative originalist stalwart Justice Clarence Thomas, a legal brain who is rapidly solidifying his position as a Constitution-defender on the same distinguished level as the late Justice Antonin Scalia. Judging (pardon the pun) by the enormous amount of racist bile and rage being directed at Thomas, the George H.W. Bush appointed 30+ year serving justice is considered public enemy number one by the kook fringe and assorted Hollywood celebrities.
Or the public enemy honor could always be bestowed on Donald Trump himself, as the leftists and Democrats (one and the same in most cases) can’t extract themselves from the hatred they’ve harbored for the leader of the Make America Great Again movement since the beginning. But it was perhaps Trump’s enduring legacy that is the Supreme Court that will extend the left’s revulsion for the outsider president well into mid-century, as the relatively young – by Court standards – trio of Gorsuch, Kavanaugh and Barrett will likely be instrumental in many more key decisions righting the wrongs of activist courts past for decades to come.
Life-revering conservatives faithfully battled the so-called “constitutional right to abortion” for nearly fifty years. I’d venture to say there are a lot of happy people today who believed Roe would never be completely overturned, and the best we could hope for was an incremental scaling back of the federal mandate permitting abortion everywhere. Casey’s “undue burden” test never did much to help, as several states passed laws that were subsequently struck down by liberal federal judges.
That’s history now, and it feels good. Trump certainly deserves huge thanks for keeping his vow to select constitutional originalists for semi-rare Supreme Court openings – and Leader McConnell merits credit for shepherding the “controversial” (only to the left) nominees through the hazardous and thoroughly discombobulated Senate confirmation process.
“Despite their mutual distaste for each other, the two forged a fragile partnership during Mr. Trump’s four years, during which they worked together to fill more than 200 vacancies on the federal courts and most importantly, three open seats on the Supreme Court, with conservative jurists.
“’Politics makes strange bedfellows,’ said Florida Republican Ford O’Connell, who is running for the state legislature. ‘For them to get three Supreme Court justices through the Senate required a lot of trust. Trump placed a lot of trust in McConnell because of the arcane rules of the United States Senate, and he felt that McConnell was the best one to navigate those landmines.’
“The alliance barely lasted the four years of Mr. Trump’s presidency, however, and fell apart on Jan. 6, 2021, when pro-Trump rioters stormed the U.S. Capitol and disrupted the joint session of Congress that was certifying the 2020 presidential election results. While Mr. McConnell did not vote to convict Mr. Trump later that month on House impeachment for inciting the riot, he still eviscerated Mr. Trump in a Senate floor speech, blaming him for the chaos and violence of that day.”
It's no secret Trump and McConnell don’t like each other now, and it’s arguable that they never saw eye-to-eye from the beginning. Looking back, then-Speaker Paul Ryan was openly ambivalent about the outsider Trump’s rise in his own party’s presidential field, but McConnell kept his views fairly tight to the proverbial vest. Mitch has always been like that – non-committal – which is one reason why he’s survived in his leadership position longer than any Republican ever has.
But the Kentuckian wasn’t exactly a Trump cheerleader, either, and conservatives noticed. Trump must have realized that McConnell and his close band of upper chamber establishment Republicans held the key to the passage of much of the MAGA agenda, and the bespectacled one’s guarded public expressions of support drew rebuke from Trump on a regular basis. Still, they didn’t seem noticeably hostile to each other until after the 2020 election.
It was clear that McConnell was a semi-silent thorn in Trump’s side, especially during the president’s first year when the late John McCain all-but singlehandedly sabotaged the administration’s effort to repeal and replace the awful Obamacare. Yet McConnell had also gone the extra mile to get Gorsuch through earlier in 2017, including employing the “nuclear option” to disarm the filibuster for Supreme Court nominees.
Before anyone goes overboard in praising McConnell for his admittedly great efforts to confirm judicial nominees, it should be pointed out that administration appointments – and judicial candidates more specifically – are generally approved of by the DC GOP ruling class. In other words, it “costs” nothing for “Cocaine Mitch” to get behind the nominee and push for confirmation because the powers-that-be are usually on the same page.
A terrific example of this symbiotic relationship was the episode during George W. Bush’s tenure when the president first nominated Harriet Miers to replace the retiring Justice Sandra Day O’Connor, then subsequently bowed to conservative pressure to accept her withdrawal for the honor. Miers was opposed by Democrats and many Republicans, so the establishment saw her as expendable. Bush himself was obviously embarrassed by the perceived slight, but the ruling class emerged from the scenario unscathed.
At the same time, a healthy majority confirmed Miers’ successor nominee, Samuel Alito, who passed the senate 58-42 despite receiving only four votes from Democrats. One wonders if Alito would be confirmed in today’s hyper-partisan environment; it could be said Alito’s was the last Republican nomination where even a few Democrats would ever give him or her the benefit of the doubt.
In other words, the Republican establishment deems it “okay” to have conservative judges, and McConnell was only following his own instincts by working to get Gorsuch, Kavanaugh and Barrett through the process. It’s perhaps the one issue area – except maybe for tax relief – that conservatives and the establishment generally agree upon.
Nevertheless, McConnell backers can make a solid case for claiming Mitch was instrumental in the destruction of federal abortion “rights”. Would another Republican have acted in much the same manner? Probably yes, unless it were Mitt Romney, who wasn’t in the senate long enough to be put in a leadership role, or Susan Collins or Lisa Murkowski – and neither of them would ever be voted into the position.
But there’s also a solid argument that without Trump, there would’ve been no Gorsuch, Kavanaugh and Barrett – or any justice inclined to overturn Roe. It all goes back to the 2016 campaign when, in a moment of great clarity, Trump opted to release a list of potential Supreme Court nominees compiled in part by the Federalist Society (he subsequently released a second list and then an “updated” version during the 2020 campaign). Conservatives who had been wary of Trump’s conservative bona fides were impressed by Trump’s willingness to name names.
After Trump beat Hillary Clinton later that year, Election Day voter surveys revealed that the upcoming Supreme Court nomination was crucial to their decision on whom to vote for, with Trump clearly besting the Democrat on the question. Therefore, if Trump hadn’t taken the chance to demonstrate that he’d fill Scalia’s vacated seat with someone of a like mind, he might not have won the presidency.
And if Trump hadn’t been on the ballot that November, the GOP might not have won the election. Only Trump could’ve roused the kind of disenfranchised and first-time voters that made all the difference in crucial swing states like North Carolina, Pennsylvania, Ohio, Michigan and Wisconsin (among others). These were the “forgotten” folks who’d been promised a better and fairer government under presidents of both parties, but were typically ignored and cast aside.
Flatly stated, if it weren’t for Donald Trump, there might not have even been a Republican majority in the senate for McConnell to preside over. Trump’s 2016 coattails certainly helped Pennsylvania Republican Senator Pat Toomey win reelection. The same goes for Marco Rubio in Florida. The Trump rival only agreed to run for reelection after Trump personally asked him to do it.
The party lost a couple senate seats in the election, but held the most important ones. Bingo! McConnell gets another couple years as majority leader, and would hold sway over the new Supreme Court nominee thanks to Trump winning the election.
It should also be recognized how Trump wouldn’t have had the opportunity to produce a potential nominee list during the 2020 campaign if McConnell hadn’t refused to hold hearings and a vote on Barack Obama’s nominee, Merrick Garland, after Scalia unexpectedly passed away. So, it was truly a chicken or the egg-type situation.
It’s no stretch to say the political stars aligned for Donald Trump and Mitch McConnell to give both of them the opening to create the right combination of Supreme Court justices to overturn Roe v. Wade. In the end, it really doesn’t matter which one of the two Republicans deserves the most accolades for the end result – both played instrumental roles. History will recognize both.
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