Courts

Mitch McConnell Called Dred Scott Author 'Most Outstanding Of American Jurists' Because Of Course He Did

Not the answer to 'who's your favorite justice?' that most people give.

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(Photo by Melina Mara/The Washington Post)

“You know what Mitch’s biggest thing is in the whole world? His judges…. He will absolutely ask me, please let’s get the judge approved instead of 10 ambassadors.”

That’s what Trump told Bob Woodward for Woodward’s latest book. It’s one of many honest moments over the course of those interviews that underscore how remarkably clueless Trump was about everything going on around him in the White House. The idea that McConnell’s obsession with judges was some sort of juicy observation to gift upon the literal archetype of a D.C. journalist betrayed a child-like naïveté that could only be explained by Trump being gloriously stupid or covering for his behind-the-scenes efforts to fight a secret cabal of sex trafficking cultists who drink baby blood. Occam’s Razor!

For anyone paying attention, unlike the former president, none of this was a surprise. Mitch McConnell spent the last several years holding up qualified judicial nominees to create artificial vacancies and then using Donald Trump to ram through every unqualified hack the Federalist Society could scrounge up, creating an unelected lifetime aristocracy to preserve his ideology well beyond its dwindling power at the polls. And all he had to do to keep Trump happy was create a Space Force so Trump could wave the USS Enterprise flag whenever he wanted. Not a bad bargain.

But what ideology is McConnell hoping to preserve? The parlor game elevated to an art by the Federalist Society is casting it as just a principled commitment to “limited government” and protecting the country from the tyranny of moderate taxes and background checks for hand cannons. Critics think this sort of pablum is just a fig leaf for more odious threads of white nationalism. That McConnell is much more aggressive to demand protection for confederate statues than balance the budget might provide some insight into his priorities. We’ll appeal to Occam’s Razor again.

What kind of judge is McConnell looking for (aside from ones the ABA identifies as unqualified, of course)? Back when McConnell was the Chief Legislative Assistant to Senator Marlow W. Cook, he wrote an article for the Kentucky Law Journal laying out his ideal justice. Young McConnell was addressing the then-recent sinking of the nominations of Clement Haynsworth and G. Harrold Carswell. Haynsworth had supported school efforts to avoid integration and crushed unionization efforts. Carswell was more straight-forward, having gone on record as believing in segregation in past remarks. But these defeats apparently chapped McConnell, who explained exactly what kind of judge the federal system needs.

Taney was approved, after more than two months of spirited debate, by a vote of 29 to 15 over vehement opposition including Calhoun, Clay, Crittenden, and Webster. He had actually been rejected the year before but was re-submitted by a stubborn Jackson.

History has judged Chief Justice Taney as among the most outstanding of American jurists, his tribulations prior to confirmation being completely overshadowed by an exceptional career.

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A contemporary obituary of Roger Taney read, “The Hon. old Roger B. Taney has earned the gratitude of his country by dying at last. Better late than never.” I guess “outstanding” doesn’t technically have to mean “good.”

McConnell, biographers note, started out in his early 20s as a Republican activist in the South when that made him a civil rights advocate. It’s a detail that his supporters have wielded as a shield over the years when he poses in front of confederate battle flags for fun. Whether he ever truly believed in the cause or just saw it as the best path to office as a Republican before the post-Civil Rights Act realignment isn’t clear, but by 1970, it’s pretty clear that he’d abandoned any commitment to it. It’s impossible to get through law school without a clear understanding of what Roger Taney was. As toxic as the former Chief Justice’s reputation was in his lifetime, it’s only managed to get worse with the passage of time.

McConnell, who’d graduated from Kentucky Law in 1967, knew exactly what dog whistles he was blowing by crafting Roger Taney as a model jurist and it puts the events of the last six years that he served as majority leader in perspective. McConnell wants a generation of judges to enforce the next Dred Scott so the politicians don’t have to. For a while he’ll have it, but just as Taney’s name is garbage regardless of McConnell’s youthful efforts to rehabilitate him, the long haul eventually pegs people for what they are.

But for cynicism junkies, there’s nothing more pure than the concluding paragraph:

In conclusion, these criteria for Senate judgment of nominees to the Supreme Court are recommended for future considerations. It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate. However, it is suggested that the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being. While the author retains no great optimism for their future usage, these guidelines are now, nevertheless, left behind, a fitting epilogue hopefully to a most unique and unforgettable era in the history of the Supreme Court.

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His lack of optimism was well placed.

Updated to fix a boneheaded mistake where I’d written his undergrad, Louisville, as if it was his law school, Kentucky.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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