SON OF A MITCH: McConnell attempts to use last day of lame duck session to stack Supreme Court

December 18, 2020
Washington, DC

There was a sense of animosity so visceral on the final day of the 116th Congress, the tension in the Senate Chamber could not be sliced with a katana wielded by Masamune Okazaki. All week, Senate Democrats had taken to the press to express utter dismay in their GOP colleagues for their unconscionable acts of voter betrayal. In the 2020 Election cycle, Democrats received the lion’s share of the total votes in the legislative and executive contests. It is clear a majority of the country has voted for a center-left government. Yet, Senate Republicans are using the fleeting hours of their lame duck authority and to go against the will of the people to attempt to appoint hardline conservative Neomi Rao to the Supreme Court. If partisanship prevailed, there would be no recourse for the Democrats to prevent Rao’s expedited ascension to the Supreme Court for the thinly veiled purpose of adjudicating Trump’s election case. Mitch McConnell’s attempt to grant Trump a third Supreme Court appointment has been the primary story at the conclusion of the tumultuous Congressional term.

As Chairman of the Senate Judiciary Committee, Lindsey Graham saw that Rao made it to the Senate floor while McConnell primed the caucus to choose party over country. During the full Senate hearings, Senate Democrats opted to use their time to criticize and shame their GOP counterparts. Rhode Island Senator Sheldon Whitehouse, in an emotional and compassionate speech, pleaded with the defeated and appointed Senators to abstain from voting in Rao’s appointment suggesting that “history will judge them harshly, if there is a history”. McConnell, seemingly aware of the precedent shattering action of appointing a Supreme Court justice in a lame duck period before a transition of power, tried to close the hearing quickly and press on with a vote. On the final day of his 53R-47D majority, Leader McConnell felt confident in successfully forcing Rao through--until a knight in shining Brooks Brothers rose.

Utah Senator Mitt Romney took the floor and laid out an objective depiction of the GOP’s collective political action: “Trump is attempting to abuse the advise and consent authority of the Senate to appoint a Supreme Court justice to adjudicate on a matter where he himself is a litigant. He is attempting to stack the highest court in the land to allow him remain in office in an illegitimate but legal manner. No other President would consider an action so caustic to all three branches of government. This appointment cannot and will not pass.” Romney continued his dignified sentiment as Senate Democrats knocked on their mahogany desks in support. Romney concluded with a powerful statement that has been circulating social media with astounding popularity: “In 1861, Abraham Lincoln, who the president frequently patriates as a Republican, called attention to the significance of the oath we take as representatives in government. To Lincoln, the oath was critical in the context of questionable loyalties. As far as I can tell, the loyalty of some of my colleagues is no longer to the nation at large, but to the current occupant of the White House.” In one sweep, Romney reappropriated the iconography of Lincoln, compared the establishment Republicans to the Confederacy and assumed rhetorical command of the Senate chamber. By the time Romney was done, the hearing room resembled the courtroom hearing from Animal House, with hooting and hollering filling the chamber with each talking point.

Next to the lectern was Alaska Senator Lisa Murkowski, who has been critical of President Trump’s greatest partisan excesses. Murkowski’s relationship with Trump soured when she applauded retired General Jim Mattis’ op-ed that antagonized the president. Murkowski characterized Rao’s mere presence before the Senate as “an undermining of the will of the people with gross transparency.” Murkowski highlighted the importance of maintaining the sanctity of our institutions and upholding the choice of the voters. 

Nebraska Senator Ben Sasse, a quietly pink Republican, completed the trifecta of Republican Senators aligned against Rao and the Republican establishment. Sasse echoed similar themes as Romney and Murkowski before him, but also looked to the immediate future. Though he did not plainly state Trump should concede, Sasse suggested an election contest that makes the United States government appear dysfunctional sets a bad example for young and impressionable students across the country.

As Senator Sasse completed his monologue, McConnell’s visible grimace suggested he  understood he did not have the votes and moved to gavel out the Senate for the holiday recess. Call it a filibuster, call it a tie, McConnell called it a quits, leaving the fate of the presidential election in limbo. Normally, in a 50-50 draw, the party with control of the Executive Branch can rely on a Vice Presidential tie-breaker. But Mike Pence has not made a public appearance in nearly six weeks--an uncanny length of time for a Vice President to be away without an explanation. His failure to appear at this critical hearing will give traction to rumors that he is suffering from significant complications due to COVID-19.

Mitch McConnell was utterly fuming as he left the Capitol building, refusing to address the press for comment. He tore off his N95 mask and slammed the door of an all black, tax-funded Lincoln. The car left a gaggle of staffers and Lindsey Graham behind, then sped off in the direction of The White House. The failure to appoint Rao to the Supreme Court is a massive political loss for McConnell on what was likely his last day as Senate Majority Leader. 

The argument made by the three Republican Senators who put a stop to Rao’s appointment was a strategically brilliant effort. There was an exigence within the GOP Senate for someone to make a power grab. McConnell has shackled the Republican Party to Trump and led four Senators to defeat at the polls. Romney appeared in tune with reality, yet capable of satiating the Republican voter’s need to recall colonial America. If there was ever a chance to make a play for Minority Leader, Romney just took it. Senator Murkowski provided the tangible substance to support Romney’s performative depiction of what Republicanism will have to become: hardline institutionalism based on a code of unrelenting honesty. Murkowski’s father, Frank Murkowski, served as a US Senator and Governor of Alaska. As his daughter, she provides the continuation of familial politics Republicans have grown to remember fondly. And Ben Sasse, the former President at Midland University, provided the youth and academic background to cultivate new supporters in the future. All the while, stopping an utterly unjust appointment of a loyalist to the Supreme Court. This brand of Republican can work with a Biden Administration and help move the country past the utterly divisive Trump presidency. This is a  rare win-win-win scenario for these three courageous elephants and a great victory for American democracy.

At the White House, President Trump had already vilified Romney, Murkowski and Sasse on Twitter before the gavel on the 116th Congress came down. Once again conjuring political motions out of thin air, Trump declared he would have Romney, Murkowski and Sasse ousted from the Republican Party--as if he has the authority or capacity to do so (he does not). Trump’s approval numbers continue to sink even deeper in the post-election world. His daily Twitter tantrums, declining efficacy in the press and collapsing economic policies have begun to permeate the alternative world Trump supporters live in. The Daily Show with Trevor Noah aired a special edition episode featuring Republicans who voted for Trump in both 2016 and 2020 expressing regret for their choices; many of the featured voters wished he would concede and end the madness. However, guests of Tucker Carlson’s program, including Charlie Kirk, Dan Bongingo and Steve Bannon have gleefully embraced the anarchy descending on the nation in service of protecting Trump’s grip on power.

Racial and partisan violence in the United States has tragically increased and become a normalized spectacle. Dating back to the George Floyd protests in May, the federal government has resorted to sending in unmarked federal agents as a response to civil unrest. The occupation of cities by federal officers with dubious authority has been met with countless lawsuits from State Attorneys General. But the overlapping jurisdiction of the state and federal governments and overall ruthlessness of the Trump administration has made the installation of feds in Democratic cities a regular occurrence. As citizens are banned from traveling to nearly every nation due to our embarrassingly poor handling of the Coronavirus, it is beginning to feel as if Donald Trump has used brute force to lock us all inside a burning building.

Or perhaps a burning hospital. Coronavirus numbers are swelling as the US remains the only developed nation still actively battling the virus on this scale. Trump’s decision to abandon the World Health Organization and disable the CDC has led to the full privatization of the COVID combatant effort. Trump had punted on Coronavirus long ago, and now that the election has passed, his concern is almost non-existent. 

The country is still shell-shocked from Trump’s failed October vaccine and the destruction of trust in a medical solution it caused. An utterly absurd conspiracy theory regarding a microchip inside a COVID vaccine developed by Bill Gates played a contributing factor in Twitter’s active and decisive crackdown on easily disproved propaganda. Conversely, people have begun to voice a fear that a truly effective vaccine will be only made available to the wealthy or powerful. Trump's consistent effort to politicize Coronavirus has strained healthcare providers to such an extreme extent that the relationship between the populous and the medical community has become exceptionally toxic. 

To avoid contracting COVID, people are flocking to the coasts where disease-prevention measures are more stringent. The hard border between Pennsylvania and Ohio has seen heavy traffic. A sea of RVs and trailers grew into a small town at one access point. As infected travelers were rejected, acrimony quickly developed on the border, exacerbating tensions between the coastal “elite” states and the middle of the country. A group of desperate extremists traversed through Ohio and arrived at a Johnson & Johnson medical plant in Mooresville, Indiana, where Trump once fleetingly suggested major medical developments were occurring. After rushing and ransacking the facility, no vaccine was found.

With the adjournment of the 116th Congress, the review of the 2020 Presidential Election is now in an unresolved, directionless state. As Congress recesses and the Supreme Court remains one justice short, the reliability of our institutions is completely absent. If the case is to proceed to the Supreme Court, it will likely result in a 4-4 stalemate. According to the 12th Amendment, when a new Congress is sworn in during a Presidential Election year, the Electoral College is literally and symbolically completed in a basic procedure which goes as follows: both houses of Congress meet in a joint session. The President of the Senate, which is a title held by the Vice President, announces the results from each state as they are presented by tellers. If Pence’s extended absence continues, the President Pro Tempore will serve as President of the Senate (traditionally, the President Pro Tempore is the longest serving Senator of the majority party. In this instance it would be Patrick Leahy of Vermont). The only instance in which the Congress did not complete this ritual was in 1876 when there was dispute over the results of three states. Republican Rutherford B. Hayes ultimately became president, but not in any constitutionally sound manner; Democrat Samuel Tilden conceded the election in exchange for the removal of Union soldiers from the South. There is nothing Trump has to offer that will lend to a similar negotiation. 

In the aftermath of the Senate hearing on Rao, Governor (Chip Diller) Ron DeSantis of Florida and Governor Brian Kemp of Georgia danced around questions from the press about certifying the election. Calls for their resignations are falling on deaf ears; the two are evidently waiting for marching orders from President Trump. Governor Wolf of Pennsylvania published an op-ed in the Washington Post describing the roadblocks the Trump administration has created for certifying the election in his state. Remember, Joe Biden and Kamala Harris need just one of three remaining states to certify the results to put this election to bed. But two toady governors in Florida and Georgia and the mountain of legal proceedings in Pennsylvania are preventing that from happening.

When Congress returns in 2021, Trump will be without the political cover from a GOP controlled Senate for the first time in his presidency. With the deadly virus, economic disruptions and a political anarchy breaking out, this Christmas holiday is sure to be unlike any other.