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Bill Straub: Dodging the crux — again — McConnell’s anger regarding leaked SCOTUS opinion misplaced

The United States Supreme Court, in its infinite wisdom, appears poised to move the nation backward by revoking a well-established constitutional right and Senate Republican Leader Mitch McConnell is screeching mad about it – not over the loss of natural liberty, mind you, but regarding the way the public learned about it.

You may have heard, unless you’ve been exploring Mammoth Cave for the past few days, that Politico got its grimy meathooks on a draft opinion penned by Justice Samuel Alito overturning the 1973 Roe v. Wade decision that established a woman’s right to an abortion. The document, which rejects a challenge to a Mississippi law prohibiting nearly all abortions after 15 weeks gestation, was provided to the publication by a person or persons unknown in an unsanctioned manner – the sort of leak the court has never experienced before.

As someone who spent years chasing governmental leaks like a lion pursuing an antelope (for what it’s worth, the antelope always seemed to get away), I’m compelled to shout “Bravo Politico.” Not our boy Mitch, who flew into the sort of rage Washington hasn’t experienced since The Donald set sail for Mar-a-Lago.

“Last night’s stunning breach was an attack on the independence of the Supreme Court,” the usually taciturn Louisville lawmaker shouted from the rooftops. “By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

Characterizing the leak as “this lawless action,” McConnell said the incident “should be investigated and punished as fully as possible. The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”

The NKyTribune’s Washington columnist Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com

Now, before we get to the meat of the issue, it should be noted there is nary a scintilla of evidence that the draft was passed on to Politico by a card-carrying member of the radical left. It’s possible, but it’s equally conceivable that someone on the dimwit right, gloriously celebrating a victory, simply jumped the gun. I have no idea who got the ball rolling and neither does McConnell.

And I’m rather confused about how this constitutes a “lawless action.” Fireable, certainly, but this isn’t the Rosenbergs slipping nuclear weapons designs to the Soviets. It’s a simple breach of court decorum and I’m not really sure which criminal statute was violated. Is it thievery if no money changed hands? It might entail violation of a federal law prohibiting a public employee from passing on information “coming to him in the course of his employment or official duties” without authorization. But that, frankly, happens every day in DC – they’re called scoops — and the nation can’t afford to send every violator to the can. Besides, it’s just a chintzy misdemeanor anyway.

But what’s really delicious about this is McConnell’s demand for an investigation, insisting the Department of Justice and Chief Justice John Roberts “get to the bottom of it.”

This is the man, Addison Mitchell McConnell, you may recall, who literally deep-sixed a congressional investigation into the Jan. 6 insurrection attempt by Trump fanatics who attacked and desecrated the Capitol. He prevailed upon Republican colleagues who were inclined to support an official probe to do him a “personal favor” and oppose the effort.

I beg your pardon, but it appears that looking into a violent effort to stop a duly-elected president of the United States from assuming office is a bit more important than determining who leaked a draft Supreme Court decision that is going to be released sometime in the next few months anyway.

Not Mitch, obviously. Talk about a man with priorities.

McConnell is also breathlessly asserting here that actions portraying the Supreme Court in a negative light is a form of intimidation, an attack on the court’s independence. He further said it’s “disgraceful” that President Biden, House Speaker Nancy Pelosi, D-CA, and Senate Democratic Leader Charles Schumer, of New York, are failing to “to defend judicial independence and the rule of law and instead play into this toxic spectacle. Real leaders should defend the Court’s independence unconditionally.”

In other words, McConnell maintains that the Supreme Court is above reproach, at least as it regards decisions he favors, and that criticism of the high court’s deliberations and findings represent intimidation and an attack on its independence.

This is remarkable hooey, even when taking the source into consideration. regarding the source. Who, exactly, does he believe he’s kidding?

The Supreme Court has never been shielded from criticism, nor should it be. In the past, most of the disparagement has come from the right wing. The Warren Court was under constant attack. Senate Republican Leader Everett Dirksen, of Illinois, griped incessantly about the court’s one-person, one-vote decision. A Republican congressman from Michigan originally named Leslie King Jr. – you know him as Gerald Ford, the 38th president of the United States – tried to impeach Justice William O. Douglas in 1970 for among other things, suggesting violence might be necessary to change the government. That effort failed, but talk about intimidation.

If anyone in America has violated the Supreme Court’s independence and placed it in the public’s disregard, it’s Mitch McConnell. His hijinks and manipulation of the processes that made the court a trusted institution are well documented as he has used every underhanded stratagem available to turn it into a tired, political wasteland that is properly derided as just another joke.

From making a membership in the Federalist Society a necessary attribute to attract a Supreme Court nomination, to disdainfully ignoring Merrick Garland to refusing to conduct a real probe into the background of Brett Kavanaugh to rushing through the nomination of Justice Amy Coney Barrett and, in so doing, casting aside the rationale he used to brush off Garland, this is the abominable governmental and legal world Mitch McConnell created.

It’s worth noting, by the way, on his diatribe against the leak, McConnell fails to address the subject matter, abortion, how the draft decision, if adopted, will affect women, and the unusual step of the court retracting, instead of expanding, liberty.

The Alito draft is, as one might expect from this dude, a silly mishmash that permits state governments to decide the fate of pregnant women.

“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

And just how will those elected representatives react? Well, in Kentucky, thanks to the 2022 General Assembly, if a 12-year-old girl is raped by her father and becomes pregnant, well, you’re on your own, sweetheart. Thoughts, prayers and all that jazz. Just roll with it, honey. Don’t come looking to the state for any relief either. God bless you, though.

A number of states – Florida, Arkansas, Arizona and Oklahoma to name a few – offer no exceptions.

But bearing the brunt of the injustice – injustice being a condition Alito and his friends aggressively discount –are the hundreds of thousands of women forced to bring a pregnancy to bear against their desire. Many are poor, unmarried, without the wherewithal or support to raise a child. Alito and his merry men – plus one woman, apparently – could give a damn less about your constitutional rights. Embrace your duty as baby machines and like it.

While we’re at it, next in the constitution negation merry-go-round? Same-sex marriage? Availability of contraceptives? Interracial marriage. The possibilities are world without end.

What’s lost in here, and should be emphasized, is the lying.

It appears likely that Kavanaugh and fellow Justice Neil Gorsuch have bought in on Alito’s attempt to overturn Roe v. Wade. If so, they lied. They failed to display the courage of their convictions. Not only did they lie, they lied while under oath before the Senate Judiciary Committee during the hearings on their nominations.

It’s simple arithmetic. The court needs five votes to overturn. The decision leans on them.

On abortion, Kavanaugh told the lawmakers, “It’s settled as precedent of the Supreme Court. One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times.”

Gorsuch said Roe v. Wade “is the law of the land. I accept the law of the land, senator, yes.”

Barrett did a better job dancing around the question, saying “It’s not the law of Amy. It’s the law of the American people.” Regardless, she doesn’t get her own chapter in Profiles in Courage over this.

All three expressed allegiance to stare decisis, a legal concept that literally means “stand by things decided.” Roe was decided almost 50 years ago and reaffirmed on other occasions. Regardless of your feelings on the issue of abortion, Kavanaugh and Gorsuch lied under oath to obtain their positions.

And people like Mitch McConnell wonder why the Supreme Court no longer commands respect.

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