Two decisions the U.S. Supreme Court published this week — each a conservative victory — brought into perfect clarity the court’s behind-the-scenes yet in-front-of-the cameras unsung hero that made those decisions possible.
That person wasn’t Associate Justice Neil Gorsuch, who participated in the rulings.
Nor was it President Donald Trump, who appointed Gorsuch to the high court.
The champion who made this week’s decisions possible performed his work in 2016, before Gorsuch’s name was ever floated, before Trump was even elected.
That person is the much maligned Senate Majority Leader Mitch McConnell, R-Ky.
McConnell is blasted by Democrats for refusing to bend to their perception of the people’s will. He’s often accused by his fellow Senate Republicans of being underhanded.
He’s been criticized by House Republicans for not advancing legislation the House sends over to the upper chamber.
He’s maligned almost daily by conservative pundits for not being conservative enough, the last point having earned him a prominent spot on Conservative Review’s list of "Top 24 RINO’s" (Republicans In Name Only).
After Justice Antonin Scalia died on Feb. 13, 2016, creating a vacancy on the Supreme Court, then-President Barack Obama scurried to find a replacement.
The problem for conservatives became, there was no replacement for Scalia. He was in a league of his own — the court’s strongest and most eloquent conservative voice. Scalia was the one who held a mirror to activist jurists who claimed the Constitution was a "living document" — that its meaning changed with the times.
The Constitution is "dead, dead, dead!" he proclaimed.
Nonetheless, Obama submitted his nominee — Judge Merrick Garland.
For Obama it wasn’t a bad choice. Garland wasn’t an uber-liberal like Justice Ruth Bader Ginsburg, but he was no Scalia either. Garland would have been more of a swing vote. something the court already had in the form of Justice Anthony Kennedy.
So McConnell put his foot down. There would be no Supreme Court nominations in a presidential election year — period.
He announced that the American people shouldn’t be denied a "voice" in the nomination process. McConnell knew he was taking a chance. No one had a clue who the next president would be — the parties hadn’t even nominated their standard bearers.
For that matter, he didn’t even know if the GOP would hold on to the Senate after the election. It could be a Democratic Senate that would confirm a future nominee.
Bur he knew one thing for certain — the person doing the nominating shouldn’t be Obama. The person selected to fill the vacuum left by Scalia’s death could determine the course of Supreme Court decisions for the next 20 years. So he held firm.
Obama protested and said that a court nomination is "supposed to be above politics, it has to be, and should stay that way."
That statement was especially rich coming from one of the most politically-driven presidents in recent memory.
McConnell recalled his role in the process later.
"I thought the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve ever made in my entire public career," he told the Kentucky Today editorial board in April.
The Washington Post’s Amber Phillips referred to this as "bragging," but it was less boast than it was fact.
On Tuesday, McConnell’s act resulted in the high court’s approval of the president’s travel ban, which was "the court's first substantive ruling on a Trump administration policy."
The following day, the court "scrapped a 41-year decision" that permitted public employee labor unions to force non-union members to contribute to the union’s political activities.
McConnell gave history a firm nudge, and thus changed the course of human events for a generation.
In an unrelated event, Justice Kennedy, the court’s 81-year-old unpredictable swing vote, announced that he’d be stepping down effective July 31, giving Trump his second shot at a conservative Supreme Court appointment within his first term.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He’s also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. To read more of his reports — Click Here Now.
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