By Al Cross
Guest columnist

Mitch McConnell has made clear that he wants the main legacy of his decades in the U.S. Senate to be conservative courts, a patrimony that will outlive him. As Senate majority leader for nearly four years, the Kentuckian has been in the best position short of the presidency to accomplish that goal. But it has required taking some risks.

A week ago, things weren’t looking up for McConnell. Doubts among a few of his fellow Republican senators about Supreme Court nominee Brett Kavanaugh forced him to delay a vote so the FBI could look into sexual-assault allegations against the judge, and a week earlier, President Trump had cussed out McConnell over his handling of the nomination.

The prospect that the Senate might not confirm Kavanaugh must have been chilling for McConnell. There’s no time to process another nominee in the weeks just before the midterm elections, and he would get blamed for the defeat – by the movement conservatives and Trump populists who don’t trust him, and the president would likely lead the charge.

In the Nov. 6 elections, there is an outside chance that Republicans could lose the Senate – and maybe their leader. McConnell typically lines up commitments from members to support him for leader as much as two years in advance, but if the party was to lose its majority and Trump wanted McConnell out, as a scapegoat, it could happen. And that would bode ill for McConnell’s 2020 re-election bid.

Now things look better for both Kavanaugh and McConnell. An FBI “investigation” that doesn’t seem worthy of the name got favorable comments from retiring Sen. Jeff Flake of Arizona, whose misgivings prompted the inquiry, and Maine Sen. Susan Collins, another Republican on the fence about Kavanaugh. They voted Friday to let the nomination proceed, indicating they would vote for confirmation.

But McConnell’s victory could be Pyrrhic. The allegations against Kavanaugh remain unresolved, and his demeanor in response to them wasn’t judicial. The seating of such a justice on the Supreme Court would further energize the Democratic base, especially women who are fed up with what they see as men’s cavalier attitudes toward sexual misbehavior.

In the short term, though, the fresh energy is with the Republican base. Polls in the last week have shown that Republicans have become almost as interested in voting in the midterms as Democrats, and some Republican Senate candidates are polling better. Trump tweeted, “The harsh and unfair treatment of Judge Brett Kavanaugh is having an incredible upward impact on voters.” His voters.

But in five weeks, Trump’s voters won’t care as much about a Supreme Court seat as women voters care about issues that are deeper and more personal. The base-energizing strategy took a very ugly turn this week, as some Republicans followed Trump’s shameful lead in mocking and attacking Kavanaugh’s chief accuser.

That seems not to matter to movement conservatives. The centrality of the courts to them was clear Sept. 21, after the initial allegations from Christine Blasey Ford. McConnell told a conservative group that Senate Republicans would “plow right through” and put Kavanaugh on the court. He got a 29-second ovation.

In effectively dismissing Ford’s charges against Kavanaugh, McConnell was taking a risk. But he has done that before when it comes to the courts.
In 2016, when Justice Antonin Scalia died, McConnell kept the Senate from considering a replacement nominee until after the presidential election. Hillary Clinton might have nominated a judge more liberal than Merrick Garland, but she didn’t get elected. The biggest thing that brought movement conservatives to Trump, making him electable, was his vow to name conservative judges.

Republicans initially didn’t have the votes to confirm Neil Gorsuch because the Senate’s filibuster rule, requiring 60 votes to proceed, still applied to Supreme Court nominations. Through a parliamentary maneuver by McConnell, with 51 votes, Republicans changed the rule and abolished Supreme Court filibusters.

McConnell was able to do that because in 2013 he had baited his predecessor as majority leader, Democrat Harry Reid of Nevada, into abolishing filibusters for judicial nominations except the Supreme Court. He did that by blocking 79 of Barack Obama’s nominees, more than had been blocked under all previous presidents combined. McConnell said then that he would vote to end filibusters for Supreme Court nominee only if two-thirds of senators agreed. But that was when Obama was president.

So, McConnell is approaching the legacy he wants. But in doing so, he is leaving another legacy, one that undermines a fundament of our republic. He has completed the politicization of the process that populates the branch of government that is supposed to be an independent check on the other branches. Kavanaugh, who has a partisan history and was too political in his response to the charges, seems ill-suited to fit that role.

Al Cross (Twitter @ruralj) is director of the Institute for Rural Journalism and Community Issues and professor in the University of Kentucky School of Journalism and Media. His opinions are his own, not UK’s.