Federal Courts and Nominations

Why Mitch McConnell Doesn’t Care if You Think He’s a Hypocrite

For people who have been observing Senate Majority Leader Mitch McConnell very closely, recent remarks in which he casually flip-flopped from blocking Obama’s nominee to the Supreme Court to saying that he would gladly confirm one from Trump during an election year came as no surprise.

The smirk on his face when he says that he would fill a vacant seat on the Supreme Court if one opened up in 2020 tells you all you need to know. He is very well aware of the fact that he is a hypocrite and doesn’t give a damn that you know it too.

That is because, unlike a lot of liberals, McConnell has a theory of change—which he explains in the remainder of the video. As we’ve seen with what Trump is attempting to do to Obama’s legacy, both legislation and executive actions can be undone in one election. But judges are given lifetime appointments. So McConnell isn’t interested in passing legislation (except to secure tax cuts for the wealthy and corporations), but has spent the majority of the Senate’s time over the last three years stacking the courts with conservatives, something he calls his most consequential political accomplishment.

In a revealing investigative piece at the Washington Post, Robert O’Harrow and Shawn Boburg document that McConnell hasn’t achieved that success on his own. The guy behind the scenes is Leonard Leo, executive vice president of the Federalist Society, who has been working towards the same goal for two decades.

You might remember that, during the 2016 campaign, Trump compiled a list of people he would consider for Supreme Court nominations. Developing a list like that was former White House Counsel Don McGahn’s idea meant to quell the concerns of more moderate Republicans about a candidate who seemed a bit off the rails. To get the job done, he turned to his good friend at the Federalist Society, Leonard Leo.

While feeding nominees to a Republican president is a powerful role, it is what happens next that is even more significant. O’Harrow and Boburg identified a network of nonprofit front groups that have been created by Leo through which he funnels dark money that has been made available via the Supreme Court’s decision in the Citizen’s United case—thanks to an assist by none other than Mitch McConnell. The Washington Post reporters were able to identify over $250 million from mostly undisclosed donors that Leo raised for those purposes over the last few years. The article and this video document how that works.

As just one example, Leo established three non-profit groups in 2016 for which he served as president—BH Fund, Freedom and Opportunity Fund, and America Engaged. The groups reported having no employees and no websites.

In 2016 and 2017, the three nonprofits raised about $33 million, with the BH Fund taking in $24,250,000 from a single donor whose identity is still not publicly known, documents show. BH Fund then gave a total of almost $3 million to the two other Leo groups, Freedom and Opportunity Fund and America Engaged…

In 2017, America Engaged passed on almost $1 million to the lobbying arm of the National Rifle Association. That same year, the NRA announced a $1 million ad campaign in support of Gorsuch. The ads targeted lawmakers in Montana, Indiana, Missouri and North Dakota who had supported Obama’s calls for gun control. “Your freedom is on the line,” the ads stated.

The case Leo and the Federalist Society make to the country about the judges they back is twofold: (1) that they will rule in conservative’s favor on cultural issues (i.e. abortion, guns, etc.), and (2) that they will strictly adhere to the original words in the Constitution.

But it is important to think about what some of these dark money donors want from the courts. They want the same thing from the judiciary that they attempt to buy from politicians: to limit the government’s attempts to regulate corporations. That was demonstrated by the confirmation of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court.

Gorsuch was challenged about his dissent in the case about the “frozen truck driver.”

The case involved Alphonse Maddin, who was driving in subzero temperatures when the brakes on his trailer froze. Maddin waited hours for assistance, but none came. Finally, after he began to show symptoms of hypothermia, he unhitched the trailer — despite instructions from a supervisor not to do so — and left seeking help. He was later fired for “violating company policy by abandoning his load while under dispatch.”

The case eventually reached a three-judge panel that included Gorsuch. Gorsuch’s two colleagues sided with Maddin in his suit against his former employer. Gorsuch sided against Maddin.

But that was just one case. The Constitutional Accountability Center documented the corporate community’s reaction to Gorsuch’s entire record prior to his confirmation hearings.

“The business community could hardly have been more enthusiastic about Judge Gorsuch’s nomination,” said CAC Vice President, and author of the Issue Brief, Judith E. Schaeffer. “In fact, corporate interests including the Chamber, the National Federation of Independent Business, and others have done the Senate and the American people a favor. They have looked at Judge Gorsuch’s record and made a strong case for why President Trump’s pick, if confirmed, would likely extend the great success rate that big business has had in the Roberts Court. We find it hard to disagree with their assessment – though for us it raises concerns, not cause for cheer.”

While Kavanaugh’s confirmation hearings became embroiled in accusations of sexual assault, the group Public Citizen analyzed his judicial record and found “a great deal of consistency.”

In 18 of 22 cases involving consumer and regulatory issues or matters of administrative law, Judge Kavanaugh sided with corporations against agencies, or with agencies against public interest challengers.

In 11 of 13 environmental cases, Judge Kavanaugh sided with corporations or states challenging the Environmental Protection Agency or other federal agencies for being too protective of the environment, or against environmental groups seeking stronger environmental enforcement.

Trump might have chosen Kavanaugh based on his extremist views of executive power, but the dark money Leonard Leo funneled into supporting his confirmation was all about his judicial record of support for corporations.

In his book, The Great Suppression, one of the strategies Zachary Roth documents that Republicans are using to maintain power, even as they slide into a minority, is the establishment of a conservative judiciary that will implement something called judicial engagement.

Judicial engagement turns the whole concept of judicial restraint (something we used to hear a lot about from conservatives) on its head. It suggests that, rather than giving the benefit of the doubt to the elected branches of government, judges should strike down laws that they think violate the Constitution. We saw that most notably with Obamacare. But as Roth explains, the deeper issue at work here is to elevate property and economic rights to be on par with other rights, like free speech. The goal is to strike down laws that regulate business or protect workers in favor of “liberty” for corporations. Or as Roth puts it: “All of a sudden activist judges are the last line of defense against the mob.”

Liberals are right to be concerned that the current courts could overturn Roe vs Wade and roll back civil rights. But what hasn’t gotten any attention is the way that conservative courts are stacking the deck in favor of big corporations and how that affects one the most important challenges we face today: income inequality.

Protecting corporate America and the one percenters is what all of the dark money Leo is raising is designed to do. It’s also why McConnell doesn’t care if you think he’s a hypocrite. He and his pals in the Federalist Society are laughing all the way to the bank.

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