Mitch McConnell has shown the nation his version of power grab

When it comes to political rhetoric among our lawmakers, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTop aide: Biden expected to visit Georgia in push to boost Ossoff, Warnock Democrats brush off calls for Biden to play hardball on Cabinet picks Richmond says GOP 'reluctant to stand up and tell the emperor he wears no clothes' MORE works in a wonderful bubble free of irony. He has denounced a Democratic proposal to increase voter turnout as a power grab. If enacted, the law would, among other things, make Election Day a federal holiday and allow same day registration in person. Whether these changes would enhance democracy may be debatable, but there should be little doubt that the proposal does not at all represent a power grab.

While McConnell likely has substantive reasons for opposing the bill, it is still important to understand why the charge of a power grab rings hollow. The British define a power grab as an “opportunistic acquisition” of more authority. In government, it is an effort to secure authority not previously granted, typically when constraining norms cannot be readily enforced. Even where democracy is not undermined, a power grab diminishes it.

Consider the power grab orchestrated by McConnell himself when the Senate refused to consider even holding hearings on Merrick GarlandMerrick Brian GarlandDemocrats brush off calls for Biden to play hardball on Cabinet picks Merrick Garland on list to be Biden's attorney general: report Defusing the judicial confirmation process MORE, the nominee of President Obama to succeed the late Justice Antonin Scalia on the Supreme Court. Dispatched to explain why Senate Republicans would not consider Garland, Senator Orrin HatchOrrin Grant HatchMellman: What happened after Ginsburg? Bottom line Bottom line MORE argued in the New York Times that, because the Obama choices embraced judicial activism and Senate Democrats were complicit, it should be up to voters in the 2016 election to decide what kind of Supreme Court justice they preferred.


This reasoning does not withstand close scrutiny. As an initial matter, the argument betrays contempt for the Constitution and fidelity to its text that Scalia himself championed. Article II of the Constitution does not require the Senate to approve any particular nominee. But the text does state an expectation that the Senate will thus take some action when the president puts forward a nominee, which namely is to give its advice.

As a matter of long practice, the Senate has fulfilled this responsibility by holding hearings at which its members seek to ascertain the fitness of the nominee. Whether or not this process is effective, it at least provides a means by which members of the Senate who take their jobs seriously to go about the task, while at the same time allowing the public to view the nominee under questioning. The Constitution contains no exceptions for nominations made during the last year of a second term of a president.

Furthermore, no one should be surprised that presidents tend to nominate lawyers who share their judicial philosophies. The appointment process is political. The winner of the last presidential election gets the power to fill federal court vacancies. Whether a particular judicial decision amounts to activism of the kind that Hatch decries is often in the eye of the beholder. The main reason McConnell sought to prevent consideration of Garland was to wait out the clock and hope for a victory in the next presidential election, which would thus ensure nominees whose judicial philosophies tended to favor Republican positions. Indeed, this plan was successful.

With his political defense of McConnell, the column that Hatch wrote simply sought to paper up an opportunistic acquisition of power. The real story is that, faced with an unexpected Supreme Court vacancy in the waning months of an administration that his party opposed, McConnell saw a chance to secure additional leverage for Republicans, and nothing stood in his way except an unenforceable tradition of the Constitution. The result was new power for whichever party has control of the Senate.

The Democratic proposal to increase voter turnout represents not just a difference in degree but in kind. To become law, the bill must pass both houses of Congress and be signed by the president. Should this happen, Democrats will have won by conforming to governing norms, rather than eliding them. Surely McConnell knows this. But in an age in which, thanks to social media, labeling has displaced reasoned discourse, he seeks to influence the debate before it begins. That does not mean we should fall for it or doubt that McConnell knows what a true power grab looks like.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”