People For the American Way Foundation

Five Ways Mitch McConnell Dramatically Impacted Our Courts

News and Analysis

In late February, Sen. Mitch McConnell announced that he will step down from his position as Republican leader later this year. McConnell has been one of the most consequential political figures of the 21st century. He set out to empower a ruthless political takeover of our federal courts, and he didn’t let democratic norms, constitutional principles, or ethical principles get in his way.

McConnell has shown that organizing around the courts can change them dramatically.

So as we prepare to turn the page on McConnell’s time as Senate party leader, let’s review five ways that he changed our courts

Denying Senate Consideration of Merrick Garland’s Supreme Court Nomination

In February 2016, nearly a full year before the end of President Obama’s second term, Justice Antonin Scalia passed away. At any other time in our nation’s history, the Senate would have considered the president’s nominee to fill the new vacancy. The idea that the Senate might simply ignore filling a Supreme Court vacancy seemed impossible.

But with McConnell as majority leader, that’s what happened. Within hours of Justice Scalia’s passing, McConnell declared that the Senate would not consider anyone nominated by President Obama. Although nearly a year was left in Obama’s term, McConnell claimed that the next president should make the choice. No Supreme Court justice should be chosen during an election year, he insisted. Even when Obama nominated Merrick Garland – a consensus nominee whom conservatives had previously said they would support – McConnell would not budge.

This left the Court ideologically divided 4-4 and prevented the 5-4 progressive majority that would have otherwise resulted. This also caused conservatives to rally around the Court as an election issue in 2016.

Neil Gorsuch’s Confirmation

In early 2017, President Trump selected Tenth Circuit Judge Neil Gorsuch as his nominee to succeed Justice Scalia. McConnell recognized that even with his party holding the Senate majority, he could not get Gorsuch confirmed. Under Senate rules, 60 votes were needed to break a filibuster of a Supreme Court nomination. McConnell didn’t have the votes to clear that hurdle. So he changed the rules: He got members of his caucus to vote to allow only a majority vote to end debate on a Supreme Court nomination.

Sometimes a Senate rule is changed in the face of repeated abuses. That wasn’t the case in 2017. Gorsuch’s opponents were not vowing to block any and all Trump Supreme Court nominees. The filibuster rule was not being abused. But it got in the way of McConnell’s goal of transforming the courts. So he changed the rule.

The Confirmation of Brett Kavanaugh

In 2018, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to succeed Justice Anthony Kennedy. Kavanaugh’s record made it clear that our rights would be at risk if he were elevated to the Supreme Court.

Before becoming a judge, Kavanaugh had been a high-level official in the George W. Bush White House. In order to adequately examine his record, senators needed records from that period. The National Archives informed the Judiciary Committee that it would take until late October 2018 to get the records. Nevertheless, confirmation hearings were held in early September. And instead of National Archives officials, Republican operatives went through the Bush White House records and decided which ones the Senate – and the American people – would see.

Then, of course, there was Christine Blasey Ford. We heard her account of her harrowing experience of sexual assault. But in the Senate run by Mitch McConnell, that meant nothing. McConnell could have made clear that he would not bring Kavanaugh’s nomination to a vote. Instead, he pushed the nomination through to get him confirmed to the Court.

Amy Coney Barrett’s confirmation during the 2020 election

In September 2020, Justice Ruth Bader Ginsburg passed away. This was much later in the presidential election year than when Justice Scalia had died. In fact, early voting had already begun in some parts of the country.

But this time, McConnell made sure that Amy Coney Barrett had a hearing and was confirmed.

Two years later, she did exactly what she was expected to do and provided the fifth vote to overturn Roe v. Wade and end the constitutional right to abortion. That decision also included a roadmap for taking away the constitutional right to privacy, including marriage equality and contraception use.

The current court majority that McConnell made possible has also elevated the “right” to carry concealed firearms in public over our efforts to stop mass shootings; severely undermined our ability to adopt meaningful federal health and safety protections; given the green light to partisan gerrymandering; struck down affirmative action in higher education; placed obstacles in the way of labor organizing; weakened the Clean Water Act; made it easier for opponents of LGBTQ+ equality to ignore anti-discrimination laws; severely weakened the wall of separation between church and state; and rewritten the Voting Rights Act to make it harder to oppose laws with a discriminatory impact on the ability to vote.

He got a considerable amount of judicial nominees confirmed

In just four years, Donald Trump got a remarkable 234 lifetime judges confirmed. That was nearly as many as during Obama’s eight years. This happened because McConnell made confirming judges a priority.

As majority leader during the Trump years, McConnell pushed through judges like Matthew Kacsmaryk, the author of infamous anti-reproductive freedom and anti-LGBTQ equality decisions. He is the kind of judge McConnell wanted to see on the bench.

As in the case of the Supreme Court, McConnell’s adherence to Senate rules and traditions for judicial nominations varied depending on which party held the White House. In the Bush years, he voted for several circuit court nominees who were opposed by their home state senators. But his opinion about the approval of home state senators changed within weeks of Obama’s taking office. In March 2009, he sent a letter signed by every Senate Republican demanding that the new president not nominate anyone who was not supported by their Republican home state senators. Citing the constitutional importance of “senatorial courtesy,” McConnell vowed that his caucus would “act to preserve this principle and the rights of our colleagues.”

However, it only took a few months after Trump replaced Obama for him to abandon it. As majority leader, he pushed for the confirmation of circuit court nominees who were opposed by Democratic home state senators. This made it possible for Trump to have a remarkable 54 circuit court nominees confirmed. Nearly one third of all active circuit court judges are Trump-McConnell judges.

So what do we do?

McConnell showed the American people what can happen when our political leaders make courts a priority. Currently, fair-minded individuals with a clear commitment to protecting the rights of everyone, not just the powerful or the privileged are being nominated. Judiciary Committee Chair Dick Durbin is making sure they get timely hearings. And Majority Leader Chuck Schumer is working to get them confirmed in the face of unprecedented obstruction.

Mitch McConnell is giving up his leadership position, but he will remain in the Senate until his term ends at the end of 2026. Then he will retire.


Amy Coney Barrett, Brett Kavanaugh, Mitch McConnell, Neil Gorsuch, Supreme Court