As Judge Neil Gorsuch has made his way this month through the gantlet required of a Supreme Court nominee, touring Capitol Hill and meeting with the lawmakers who will decide his fate, President Trump has boasted flamboyantly about his choice.
But on that late-January evening when Trump introduced Gorsuch to an approving audience at the White House, someone else in the elegant East Room was also beaming with pride: Senate Majority Leader Mitch McConnell (R-Ky.).
Technically, this was Trump’s selection, but for many critics and fans, the vacancy will be remembered as the McConnell seat.
Almost exactly one year ago, Justice Antonin Scalia died on a hunting trip in a remote corner of Texas. Without consulting his colleagues, McConnell declared that no Supreme Court nominee from then-President Barack Obama would ever be considered. He stuck to his word: By the fall, Senate Republicans who had joined McConnell in stonewalling Obama’s nominee, Judge Merrick Garland, were begging voters to side with them to provide a check against Democratic nominee Hillary Clinton’s choice for the Scalia vacancy — and to consider voting for Trump, who most of them thought was headed to defeat.
As we all now know, Trump pulled off the upset. And according to bipartisan analyses, his victory was driven in part by doubtful Republicans who came home to an unconventional candidate with shaky conservative credentials because they believed he would appoint reliable justices to the Supreme Court.
Depending on one’s political perspective, McConnell pulled off one of the most successful strategic maneuvers of modern politics — helping hold the Senate majority, aiding a Republican takeover of the White House and keeping a conservative majority on the Supreme Court — or he is responsible for one of the most duplicitous obstructions ever seen on Capitol Hill.
From McConnell’s perspective, everything went according to plan.
“I felt, personally, very invested in this issue,” McConnell recalled in a recent interview in his Capitol office, still boastful nearly three weeks later. “One of the happiest nights of my Senate career.”
And why not? Among all the other strategic benefits, there’s also this: After years of doubting McConnell’s ideological credentials, conservatives have finally rallied around him.
Some Democrats still have trouble talking about Garland’s fate. Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee, took a deep breath when he heard McConnell’s description of Gorsuch’s nomination as one of his “happiest nights” ever.
Then Coons sighed. Then he sat silent. For 19 seconds.
Finally, he jabbed at McConnell’s self-proclaimed title of protector of the Senate as a unique institution. “I continue to hope that Majority Leader McConnell will prove himself more an institutionalist than a partisan,” Coons said. “I found his willingness to prevent for 10 months any hearing or vote on Judge Merrick Garland to be an unprecedented violation of long-standing tradition and rules of the Senate.”
McConnell and Senate Republicans said they had precedent on their side, but in the early days after Scalia’s death, they struggled to find examples when the Senate had simply refused to consider a nominee because the vacancy had occurred in a presidential election year.
Harry M. Reid (D-Nev.), the Senate minority leader at the time, predicted that McConnell would fold. But then Republicans found video of a 1992 Senate floor speech by Joe Biden, then chairman of the Senate Judiciary Committee, declaring that if a vacancy opened up that summer, he would not consider the nominee.
Republicans dug in for a political fight, but some remained less sure of what the political fallout would be. “I don’t think I perceived the political pluses of the actual vacancy,” Sen. Roy Blunt (R-Mo.), who faced one of the toughest reelections of 2016, said of McConnell’s strategy.
For Blunt’s first 5½ years in the Senate, voters complained most often about federal regulations, he said. That changed last summer.
“Starting in August, the one thing I heard about over and over was how important the court was,” Blunt recalled. The “actual vacancy” — instead of the hypothetical openings given the advanced age of many justices — was “incredibly focusing” for conservatives, he said.
In almost every Senate race, Republicans appealed to conservatives about the Scalia seat, while the Democrats simply gave up. The only Democratic candidate or surrogate who regularly mentioned the high court was Sen. Bernie Sanders (I-Vt.), who did so as a way to criticize the 2010 Citizens United decision that allowed big money into campaigns.
Blunt won his race by less than three percentage points, a narrow enough victory that the court vacancy may have been the deciding factor.
In the interview, McConnell revealed that he did more than just hold the line against Garland. He positioned himself as one of Trump’s key Supreme Court advisers. He suggested to candidate Trump that he come up with a list of contenders for the court — and importantly, he directed him to the conservative Federalist Society for advice.
Trump took the advice and published a list of 21 names, including Gorsuch. Onetime rivals, including Sen. Ted Cruz (R-Tex.), cited that list in endorsing Trump for president.
On Election Day, Trump won almost the exact same level of support among self-identified Republicans as Mitt Romney had in 2012. He actually performed a little better than Romney with white evangelical Christians, a stunning feat for a New Yorker married three times who has supported abortion rights in the past and shows no obvious comfort talking about faith.
McConnell credits his Supreme Court strategy as a critical factor in Trump’s victory.
“The single biggest issue in bringing Republicans home in the end was the Supreme Court,” he said. “The single biggest issue.”
Two weeks after the election, at its annual gala dinner, the Federalist Society honored McConnell as a political hero.
Now, McConnell comfortably guarantees that the Senate will confirm Gorsuch.
Sen. Jeff Merkley (D-Ore.), who calls the vacancy a “stolen seat,” said Gorsuch’s nomination must clear a 60-vote hurdle to end a filibuster — a proclamation McConnell belittled because it came “before he even knew who the nominee was.”
Comments like that drive Democrats mad. In their minds, McConnell made the exact same declaration two hours after Scalia’s death was announced, blocking a nominee one month before Obama even announced Garland.
Some Democrats, including Coons, are trying to keep an open mind about Gorsuch — so long as the Judiciary Committee is given plenty of time to consider the nomination, all the proper documents are filed and the full Senate holds a long, fair debate.
That might forestall a filibuster and avoid a messy showdown over the rules of the chamber that would look like just another day of Washington dysfunction to the rest of the country.
“The majority leader yet has a chance to show that he prioritizes the health of the Senate over a narrow partisan advantage,” Coons said.
It’s true that McConnell would rather, in deference to Senate tradition, avoid dismantling the power of the filibuster — known on Capitol Hill as the “nuclear option” — to jam through the nomination. But it’s also true that there is peril for Democrats, particularly those from conservative states who are up for reelection next year, in opposing Gorsuch.
McConnell views Gorsuch’s confirmation as a key part of his own legacy. He has said repeatedly that his nomination will prevail with or without Democratic support. With hearings scheduled to begin March 20, McConnell has confidently set April 7, the eve of a two-week spring break for senators, as his goal for confirmation.
“It makes me feel particularly proud,” he said, “because that was, some would argue, the single biggest decision I made in the last Congress.”