FRONTLINE: "Mitch McConnell, the G.O.P. and the Courts" (Kirk Documentary Group, WGBH Educational Foundation, GBH, PBS, 2023)

by Mark Gabrish Conlan • Copyright © 2023 by Mark Gabrish Conlan for Zenger's Newsmagazine • All rights reserved

Last night (Tuesday, October 31) I watched a PBS Frontline show called “McConnell, the G.O.P. and the Courts,” dealing with U.S. Senate Republican leader Mitch McConnell (R-Kentucky) and his successful fight to remake the U.S. judiciary – not just the Supreme Court but the whole ball of wax, from the lowliest district courts on up to the Supremes – in a direction writers Michael Kirk (who also directed) and Mike Wiser persisted in calling “conservative” even though it’s nothing of the sort. It’s actually a movement of Right-wing revolutionaries bound and determined to remake America in their own image, at once shrinking government when it comes to regulating the economy in general and corporations in particular and vastly increasing the size and scope of government in terms of its power over individual’s private lives, especially how they can have sex, with whom, under what circumstances and how they may deal with the consequences therefrom, both good and bad. Kirk and Wiser portrayed McConnell as a man deeply shaped by a childhood disability; he contracted polio at 2 and spent the next few years almost completely confined to his bedroom, with his mom as his caregiver. When he finally emerged from his medical cocoon and started going to school like the other kids, McConnell soon gravitated to student politics, running for campus president in his high school – since his dad was an Army officer, the family moved a lot and it wasn’t until his freshman year in high school that the McConnells settled in Louisville, Kentucky – and winning after he put together a list of endorsers that included the most popular people on campus. Much of the show is narrated by McConnell himself via excerpts from his autobiography, The Long Game (itself a good description of his political strategy!), and the audiobook version of it he read himself. In it he described the exhilaration he felt on his election as high-school student council president and how he decided from that point he would make electoral politics his life’s work. After a stint in President Gerald Ford’s Department of Justice, where he served alongside such leading lights of the Right-wing judicial movement as Antonin Scalia and Robert Bork, McConnell returned home and mounted his first campaign for professional elective office when he ran for judge/executive of Jefferson County, Kentucky (which contains Louisville), the top leadership position in county government.

At the time McConnell was still seen as a moderate Republican – in 1964 he’d co-authored an op-ed in the Louisville Courier-Journal endorsing the proposed Civil Rights Act and criticizing fellow Republicans who opposed it, including Barry Goldwater, the GOP’s 1964 Presidential nominee, who as a Senator from Arizona had voted against it. He got the Courier-Journal’s endorsement at a time when the paper almost never endorsed Republicans. According to Keith Runyon, who was then on the Courier-Journal’s editorial board, “He came into the editorial board room at the Courier-Journal, where I worked, for his endorsement interview, and he sat down and he answered our questions. He came off as being enlightened, thoroughly honest. And he did a very, very good job in his interview.” After two terms as judge/executive, McConnell decided to run for U.S. Senate in 1984 against two-term Democratic incumbent Dee Huddleston. McConnell brought in Roger Ailes, already legendary for having run Richard Nixon’s TV campaign for U.S. President in 1968 and ultimately the founding news director of Fox News, to run his campaign. Ailes demanded that McConnell authorize a scorched-earth negative campaign against Huddleson, including a famous TV commercial showing a bloodhound allegedly trying to track down Huddleston for doing paid speaking engagements instead of showing up at the Senate for key votes. McConnell squeaked through by 5,000 votes in a year in which Ronald Reagan won 49 states in his re-election bid and carried Kentucky by 300,000 votes. After his Senate campaign, McConnell had breakfast with his old friend Keith Runyon from the Louisville Courier-Journal and, according to Runyon, “[H]e said, ‘Keith, I don’t know that you all will ever endorse me again.’ And I said, ‘Well, why is that?’ He said, ‘Because I’m going to have to become much more conservative to be re-elected, much more conservative than you all are.’ And so he became.”

The next key step in McConnell’s political devolution came in 1987, when Reagan nominated McConnell’s old Justice Department colleague Robert Bork to an open seat on the U.S. Supreme Court. Bork had accumulated a long record of stating openly his opposition to abortion, women’s rights in general, and Queer rights. As an appeals court justice he’d written an opinion upholding the constitutionality of anti-Queer sodomy laws that the U.S. Supreme Court later upheld. Liberal and progressive groups mounted a full-court press, lobbying people to call their Senators and demand that Bork not be confirmed to the Supreme Court, and the tactic worked – Bork’s confirmation was voted down 42 to 58. But McConnell left the controversy over Bork literally vowing revenge and saying the Democrats’ victory over Bork would come back to haunt them. It did. The documentary shows footage of McConnell declaiming about the Bork defeat, “And so to Robert Bork, you happen to be the one who set the new Senate standard that will be applied, in my judgement, by a majority of the Senate prospectively. Unfortunately, it got set over your dead body, so to speak, politically. … We’re going to do it when we want to. And when we want to is going to be when the president, whoever he may be, sends up somebody we don’t like.” McConnell got his revenge when Antonin Scalia, yet another former colleague of his from Gerald Ford’s Justice Department, died suddenly in February 2016. Almost immediately, McConnell, then the Senate’s majority leader, announced that he would personally block any attempt by Democratic President Barack Obama to appoint a successor to Scalia, on the ground that there would be a Presidential election in nine months and the voters should therefore get to decide who would get to fill that vacancy on the Court. New York Times reporter Peter Baker recalled, “Mitch McConnell doesn’t even wait for the day to end after Antonin Scalia dies to put out a statement saying, in effect, we’re not going to let President Obama replace him. That it’s an election year, we’re going to wait for the next president to nominate somebody.”

In late March, Obama went ahead and nominated then-Appeals Court judge Merrick Garland to fill Scalia’s seat – but McConnell was able to make sure the Senate, with a Republican majority, wouldn’t even meet with Garland, much less consider him. McConnell said bluntly, “The right-of-center world, it does not want this vacancy filled by this president. … [W]e're not giving a lifetime appointment to this president on the way out the door to change the Supreme Court for the next 25 or 30 years.” According to PBS Supreme Court reporter Nina Totenberg, when one Republican Senator – Jerry Moran (R-Kansas) – threatened to break ranks and meet with Garland, McConnell immediately said if he did, McConnell would personally recruit an opponent to run against Moran in the Republican primary. Moran caved. “It was outrageous at the time, and it’s still outrageous,” said Washington Post columnist Eugene Robinson. “They kept the seat open for nearly a year, refusing to give Merrick Garland even a hearing, even the courtesy of being rejected. But he did it. He had the power to do it, and so he did.” When Donald Trump beat Hillary Clinton in the 2016 Presidential election, McConnell got his Right-wing replacement for Scalia – Neil Gorsuch, son of President Reagan’s controversial appointee to head the Environmental Protection Agency, Anne Gorsuch. Trump would go on to make two more Supreme Court appointments – Brett Kavanugh, who replaced Anthony Kennedy (the judge Reagan had appointed after the Bork defeat, who was mostly a solid Right-wing vote but differed with the Right on two major issues, juvenile justice and Queer rights: it was Kennedy who wrote the opinions invalidating sodomy laws and bans on same-sex marriage); and Amy Coney Barrett, who replaced liberal icon Ruth Bader Ginsburg when she died of cancer less than two months before the 2020 election. McConnell used his power as Senate leader to rush through Barrett’s confirmation – and when he was confronted about his obvious hypocrisy in denying a Democratic President in his last year in office the chance to replace a Republican Justice, while rushing through a Republican appointee just two months before a Presidential election, McConnell said, “I can only repeat that we have an obligation under the Constitution, should we choose to take advantage of it, to fill the vacancy, and I assure you that’s very likely to happen.” According to former McConnell chief of staff Josh Holmes, McConnell not only told Trump to rush through an appointment to replace Ginsburg, he said to Trump that Barrett – a long-standing anti-abortion, anti-choice activist – should be the nominee. Barrett was confirmed as Senate Democrats watched helplessly while McConnell steamrollered the nomination.

The Frontline show also detailed McConnell’s other compromises to stay in Trump’s good graces, including going along with Trump’s racist comments about Mexican and Muslim immigrants and his statement that there were “very good people – on both sides” in the 2017 demonstrations in Charlottesville, Virginia, in which neo-Nazi protesters and anti-racist counter-protesters clashed in the streets, violence ensued and one person was deliberately run over by a racist driving a Dodge Challenger (an iconic vehicle for the racist Right since the TV show The Dukes of Hazzard, whose central characters drove a Dodge Challenger painted to look like the Confederate flag). According to Kirk and Wiser, McConnell never believed in President Trump’s claims that the 2020 election had been “stolen” from him (or “stollen,” as Trump has been spelling it in his recent Truth Social posts), and he was aghast at the attack on the Capitol by Trump supporters on January 6, 2021. The night of January 6, with the official Congressional certification of Joe Biden’s victory over Trump delayed for several hours by the mob’s onslaught, McConnell said, “We’re not going to let these people keep us from finishing our business, so we need you to get the building cleared, give us the O.K. so we can go back in session and finish up the people’s business as soon as possible.” McConnell’s original reaction to the second impeachment of President Trump over his role in allegedly inciting the January 6, 2021 riot was supposedly to tell two advisors that if what Trump had done wasn’t an impeachable offense, he didn’t know what was. But when push came to shove he voted to acquit Trump, and though there were 57 Senate votes to convict Trump, the Constitution requires a two-thirds vote to convict, and they were 10 short. “He is not the idealistic young man he had been back at home,” Right-wing columnist Mona Charen told Frontline. “Being in power had changed him. He had become too in love with power, and so he was willing to make too many compromises in the name of holding onto power.”

The Frontline documentary began and ended with clips of the two recent press appearances in which McConnell literally froze up and found himself unable to talk, and the second one came – ironically enough – in a press conference just as McConnell was being asked whether he would run for re-election to an eighth term in 2026. This led me to ponder the bizarre gerontocracy American government has become; I remember joking that for all the talk about the 2020 Democratic Presidential field having an unprecedented range of people of all ages, genders and colors, the final choice was between two seventy-something white men, Donald Trump and Joe Biden (three if you count Bernie Sanders, Biden’s last-standing opponent for the nomination). I remember thinking when Barack Obama won the 2008 Presidential election that I had passed an important generational milestone – finally there was a President younger than me – but there hasn’t been one since: Trump broke Ronald Reagan’s record as the oldest President ever and now Biden has broken Trump’s. McConnell has said that reshaping the federal courts – not just the Supreme Court but the entire U.S. judiciary – in a Right-wing direction has become his legacy accomplishment, and it’s hard to deny that. Under McConnell and Trump, the Supreme Court has a solid and seemingly impregnable 6-3 Right-wing majority that has thrown its weight around, most notably in reversing Roe v. Wade and destroying the whole idea that the Constitution guarantees women autonomy over their own bodies. It’s also vastly expanded the reach of the Second Amendment, including throwing out a century-old New York law restricting the concealed carrying of weapons (you see what I mean when I say that whatever these people are, they are not “conservative” by any stretch of the imagination), invalidating President Biden’s attempts to forgive student-loan debts and block the spread of COVID-19, and severely restricting the right of the Environmental Protection Agency (EPA) to do its job of protecting the environment.

McConnell’s legacy will be an America in which women have no right to say no to pregnancy and forced birth, Queers once again are illegal and same-sex marriage is a distant memory, people have no right to be protected against crazies among them who stage mass shootings, and corporations have the right to pollute as much as they damned well please and work their employees, including children, to death – but not the right to speak out against politicians enacting an “anti-woke” agenda, as the Walt Disney Corporation found out to its cost when it dared oppose Florida Governor Ron DeSantis’s so-called “Don’t Say Gay” bill. As Edward Luce wrote in the May 3, 2023 Financial Times (https://www.ft.com/content/f2a34faa-9ef7-4e11-9ea1-ef65e6c1d4ae), the closest analogue anywhere in the world to the U.S. Supreme Court Trump and McConnell have created “sits in Tehran. Iran’s Council of Guardians is unelected, regulates women’s bodies, cannot be removed and is impervious to public opinion. They answer to a higher power. The more America’s Supreme Court resembles a theocratic body, the more it imperils itself.”