Even in the Obama years, when I generally disliked most everything the Democratic Party stood for and I was still in a conservative (albeit libertarian) media bubble, I really disliked Mitch McConnell’s obstructionism on government appointments, including those of judges and justices.

There is that one haunting story which is impossible for me to forget of a woman named Cassandra Butts, a friend of President Obama, who was nominated for a diplomatic post (Ambassador to the Bahamas) – the pinnacle of her professional life. She then wallowed in confirmation limbo FOR OVER TWO YEARS while McConnell’s Senate caucus (in this case aided by Tom Cotton) refused to hold a vote for her nomination as an act of personally targeted retribution.

She ended up falling ill and dying alone in her DC apartment of undiagnosed cancer, still without the dignity of a vote and the closure all people willing to serve their nation should be afforded in a timely and responsible manner.

But her story of uncertainty and political games wreaking personal havoc, even tragedy, is replicated by dozens of other aspiring diplomats and over 100 legal professionals nominated to judicial lifetime appointments but who were never voted upon under President Obama.

When people accept these nominations for political, diplomatic, and judicial appointments they often agree to put their professional careers on hold.
Many aspiring diplomats ended up living in temporary month to month rentals in the DC area, where they were supposed to be always ready to go through the nomination process and potentially depart overseas, but never called upon to complete the process, offered an up or down vote on their qualifications, or given closure on their willingness to serve.

Just as failure to staff our diplomatic posts can weaken our mission abroad, failure to timely staff our judicial posts can weaken the administration of justice here at home.

President Trump likes to brag about how he has made the most judicial appointments in the history of a presidential first term. But this large number of appointments was only made possible by Mitch McConnell’s obstruction of the proper role of Congress to advise and consent of these appointments over the course of those final years of Obama’s administration. McConnell’s refusal to fill those seats as they were vacated led to widespread understaffing across the federal bench.

Once the GOP had re-gained control of the Presidency and retained control of the Senate, they quickly sought to fill all of these openings with ideologically like minded judges, several of whom are lacking in proper credentials or experience. You can still think this is a good thing (I don’t!) but we shouldn’t deny this reality when discussing the larger implications of Senator McConnell’s legacy.

Yes, McConnell likes to point to Harry Reid as his excuse for why he acted so aggressively over these past several years. But “he did it first” seems an inadequate defense of risking the long term apolitical integrity of our judicial system. In the time he let federal court openings pile up, some Federal courts slowed down because they did not have enough justices to hear cases. Every day Americans, looking for justice, faced delays or subpar service, as a direct result of this pattern of obstruction and McConnell’s leadership strategy.

We tend to focus most of the current debate on the case GOP Senators made for refusing to meet with or vote on Merrick Garland, but the GOP refusal to fill that seat on the Supreme Court in 2016 was merely a continuation of a calculated and long-game strategy to radically remake the ideological direction of the court in a way that better favored their own policy goals and political objectives.

The court has already been cynically politicized, perhaps in a way that we can no longer clearly escape from or reverse.

While often hailed in conservative circles as the only right way to understand American law, Originalism (and/or Textualism) is just as politically loaded and influenced as any other from of jurisprudence or competing theory of constitutional interpretation. Conservatives would best serve the public discourse in this country if they could start by acknowledging as much when defending their interpretative preferences.

There is no purely neutral or correct way to interpret the constitution, which is why it is healthy for this country to have a wide variety of approaches represented in our courts. Among other things, when a well balanced court frequently finds (near) unanimous agreement the weight and legitimacy of those decisions carries further.

I fail to see what is so different from this strategy of omission, employed so successfully by McConnell, and any debate about adding justices to our federal courts in order to achieve ideological balance, parity, or majority moving into the future. To me, they are one in the same concept.

In fact, the Arizona Supreme Court was recently expanded from 5 to 7 justices by GOP Governor Doug Ducey in 2016 as a way to achieve the exact kind of outcomes that McConnell is trying to manipulate by selectively withholding and filling nominations on the basis of pure power politics.

This is not my preferred method of how to handle these openings. I think all of them should have been filled as they opened, and any discussions about expansion are best served by bipartisan consensus about the proper structural function of the court vs based on preferential ideology.

If Merrick Garland had been put on the court in 2016 then Amy Coney Barrett replacing Ruth Bader Ginsberg this close to an election would not be seen as such a major risk or deviation from current precent AND the court may well have still shifted to the right overall.

As it stands, if the conservatives in this country can pack our courts through strategic obstruction and subtraction, why shouldn’t the progressives pack the courts through strategic addition? If you oppose “court packing” by the Democratic Party then you should also oppose everything Mitch McConnell has stood for and modeled in Senate leadership over the past decade or more.

Technically, both forms of exerting undue influence over the ideological and numerical shape of the court are constitutional. It remains to be seen if either or both strategies are prudent, fair, or wise.