Commentary by Ted Potrikus
Here’s how I picture Mitch McConnell in his college days:
“Hey Mitch!” call his pals. “There’s a big protest march down in the quad. Posters, bullhorns, and everything! C’mon!”
“Nah,” says Mitch. “You guys go on ahead and have fun. I’m gonna stay in and study this book I found by a guy called Machiavelli.”
A few years later, there’s Mitch McConnell, local lawyer and burgeoning politician.
“Mitch,” says his local party boss. “Rally down at the town square. Press is gonna be there, I think it’ll be a good photo op for you. Hold up a sign and make people think you’re actually doing something about their problem.”
“No thanks,” Mitch says. “I’ve got this book about the rules of the United States Senate and I’m really into it. I’m staying in to read.”
Then, like water does, when he got elected to the Senate in 1984 he assumed the shape of his container and started to become the Senate. He played the long game masterfully. It’s the only way to take effective reins in a Congress where everyone wants to be in charge but few have the patience necessary to win the prize. You’re plotting every move five or more years in advance, nudging the dominoes to fall in the direction you need but always based on the rules. As with any long game, there will be setbacks and disappointments along the way, some of them soul-crushing. Sometimes you have to force a hand or two, but if you want to stick around, you can’t make yelling into a bullhorn, posting pithy Twitter tweets, or attending rally after rally to be your bread and butter. You have to put in the boring work that no one sees.
Hence the decisions handed down in the last week by the Supreme Court of the United States. Pure long-game strategy brought to stunning fruition thanks to any number of factors; a fragile domino chain whose building blocks historians may one day trace back to the Reagan administration when SCOTUS members started to age out or die. One at a time. On a schedule no one could predict, but everyone was watching – some more intently than others.
The uh-oh got louder as the century unfolded – people looking around and thinking, “Some of these folks are getting pretty old.” Then, just as President Obama nominated Merrick Garland to fill the vacancy left by Antonin Scalia’s death, in swooped Majority Leader Mitch McConnell, the unrivaled Mr. Universe of Procedure. Because McConnell had the granular details of obtuse Senate rules running through his veins, he could take a quantum-sized leap ahead in his long game and give a hefty shove to that first domino.
Those leaning on the cross-the-fingers-and-hope-they-don’t-die strategy in the Trump years were sorely disappointed by the Grim Reaper’s unwelcomed visit to RBG and Anthony Kennedy’s “decision” to retire, which, along with the Garland Block, gave the Trump/McConnell tagteam a once-in-a-generation chance to redirect the federal court system from the top down.
Here’s another big part of that long-game strategy, one potent enough to carry the victory march much farther into the future – Messrs. Trump and McConnell appointing and confirming more than 200 judges to the federal bench, including powerful federal appeals court judges – in the Trump administration’s four-year lifespan. Don’t forget McConnell’s exhortation to then-President Trump during a campaign rally; referring to openings on various federal courts, McConnell shouted, “You keep appointing ‘em and we’ll keep confirming ‘em!”
This strategy took decades to sow and take root to yield the bonanza conservative harvest from this year’s SCOTUS decisions. These aren’t decisions that happened overnight or because of a social media campaign with a lot of somber-faced people holding up placards with one platitude or another. The SCOTUS walls are impervious to public protests and outrage.
One of the core issues of my 30-something years as a lobbyist for the retail industry was leveling the proverbial playing field between brick-and-mortar stores and online merchants. New York was the first to successfully capture that revenue stream with our 2008 law that withstood every court challenge, but it took at 2016 South Dakota law to make it all the way to SCOTUS for a ruling that now pretty much requires us all to pay sales tax on anything we purchase from an on-line merchant.
The 2018 ruling was the culmination of work tracing back to the early 1960s when door-to-door salesmen and mail-order catalogs started competing in tax-free earnest with brick-and-mortar merchants. Congress wouldn’t do anything to advance new rules, so retailers pushed a state law up the judicial chain to make things happen.
The point here is that to overturn prior SCOTUS rulings unfriendly to brick-and-mortar, it took the long game. Decades of frustration, patience, strategy, disappointment, failure. No shortcut worked, no #hashtag campaign, no heart-rending appeals from mom-and-pop stores put out of business by the likes of Amazon et al. It took a state law, a series of lower court challenges, and a Supreme Court willing to take up the case. A long game.