McConnell defends Supreme Court on abortion, says impact will be ‘a wash’ in midterms

Senate Minority Leader Mitch McConnell defended the U.S. Supreme Court’s potential move to issue rulings that are in conflict with a majority of Americans’ views on abortion rights, telling NPR that is a feature of the system.

“So for the Supreme Court to on any issue, to reach a decision contrary to public opinion it is exactly what the Supreme Court is about,” he said. “It’s to protect basic rights, even when majorities are in favor of something else, that happens all the time.”

McConnell pointed to a 1989 decision the court issued on flag burning, noting the Supreme Court struck down a bill that would ban it on the basis that it was a violation of the First Amendment.

“If you took public opinion polls on that issue, people would overwhelmingly support a legislative prohibition of flag burning, but the Supreme Court interpreted that as a violation of the First Amendment freedom of speech,” he said.

Democrats maintain that the leaked draft Supreme Court opinion overturning Roe v. Wade, first reported by Politico last week, upends five decades of precedent. They argue it is a product of a decades-long effort by right-leaning groups and their allies in Congress, led by McConnell, to confirm justices that would restrict or eliminate abortion rights.

But McConnell insisted that his focus on installing conservative judges on the federal bench was not about any one issue, telling NPR, “My interest in this was unrelated to any particular issue.

“But I felt very strongly that we ought to have men and women who are not what’s typically referred to as ‘judicial activist,'” he said.

McConnell blamed declining public trust in the Supreme Court on Democrats in Congress attacking individual justices by name and an effort by progressives to reform the structure of the court by proposing expanding its size and instituting term limits.

“It’s no wonder that by politicizing the Supreme Court, like the political left has, including the Democratic leader of the Senate — it would affect their approval ratings. That needs to stop,” he said. “The president, who knows better, set up a commission to study the composition of the court. The Supreme Court is not broken and doesn’t need fixing.”

Abortion and the midterms

McConnell said the debate about abortion will shift to the states. Democrats are retooling their message for the November midterms to feature the impact of the conservative majority’s leaked draft opinion setting aside legal protections for abortion services.

“I think it will be certainly heavily debated in state legislative and governor’s races because the court will have, in effect, returned this issue to the political process. My guess is in terms of the impact on federal races, I think it’s probably going to be a wash,” McConnell said.

McConnell has steered clear of weighing in on any contentious GOP Senate primaries. Later this month, Pennsylvania holds its primary and there are several GOP candidates vying to run for the seat of retiring Sen. Pat Toomey.

As he’s done in the past, McConnell cautioned his party to pick nominees who are viable general election candidates. When asked about extreme positions and statements from one GOP candidate, Kathy Barnette, McConnell declined to comment on the race, but issued a warning to fellow Republicans:

“We need to nominate people who can appeal to a broader audience that you can’t win with the base only,” he said. “And so I think the quality of the candidate who’s nominated is really important.”

He said he’s “hopeful and optimistic” the primary will “produce fully electable people because we had a bad experience with that in 2010 and 2012,” referring to four right wing candidates in those cycles who lost in years that were otherwise good for boosting the party’s numbers in Congress.

“We have a terrific environment and I’m hoping we don’t mess that up by nominating people who can’t win,” McConnell said.

Democrats have pointed out that the legal reasoning the conservative majority on the Supreme Court used in the draft opinion on abortion is also the basis for laws governing same-sex marriage, in-vitro fertilization and contraception.

President Biden called the Supreme Court’s leaked opinion on abortion “radical” and said last week “It would mean that every other decision related to the notion of privacy is thrown into question.”

McConnell declined to say whether he believed the legal framework could expand to other issues.

“I don’t have any advice to give the Supreme Court. They shouldn’t take my advice. Their job is to interpret the law as best they can.” He added, “I occasionally complain about a Supreme Court decision. I don’t go over on the steps of the Supreme Court and single out justices by name. I’m certainly free to do that. And that’s perfectly appropriate in our in our country. But I’m not, you know, going to start second-guessing their decisions. They are the best lawyers in the country trying to do the best job they can. All nine of them.

Ukraine funding and the Biden administration

The Kentucky Republican said he spoke by phone with Biden about the need to pass a strong funding package to assist Ukraine with security support and weapons. The Senate is expected to vote soon on a package of nearly $40 billion for Ukraine that the House passed earlier this week. McConnell said he convinced the president to separate the legislation from a COVID relief bill. McConnell said the president’s handling of the issue has “gotten better and better” as the U.S. and the broader world community saw President Volodymyr Zelenskyy’s strong pushback to the Russian invasion.

“I think the administration was a little tentative in the beginning, probably suspecting the Ukrainians couldn’t pull this off,” he said “So we’re all on the same team on this. The Russians need to lose. The Ukrainians need to win.”

But a significant bloc of House Republicans opposed the package — 57 voted no earlier this week, and there’s a contingent in the GOP that is advocating for an “America First” policy approach that former President Trump espoused during his tenure, pulling back on support for allies overseas. McConnell said about that wing of his party, “On this issue, I don’t agree with them and we’ll see how big a group that is. I think we’re all acutely aware of Russian atrocities.

“I think we — most Americans and most Republicans — believe that we ought to, that this is a clear example of right and wrong, of good and bad, and America and the Democratic world is standing together, by and large, in opposition to this brutal and completely unwarranted invasion.”

Future Biden nominee to the Supreme Court

The GOP leader sidestepped a question about what he would do if his party regains control of the Senate and there is another vacancy on the Supreme Court:

“How that plays out on individual confirmations or legislation, I’m not prepared to announce today, but we are going to see where we can cooperate.”

McConnell blocked then-President Obama’s nomination of Merrick Garland in 2016 to fill the vacancy left after the death of Justice Antonin Scalia.

Trump and judicial nominees

McConnell stressed his close coordination with two White House counsels that served in the Trump administration — Don McGahn and Pat Cipollone.

As for the former president, McConnell downplayed any involvement in the process to vet and select nominees, saying, “Well, I think he took good advice. Honestly, he was not familiar with this issue at all.”

“He had two good White House counsels in a row who took recommendations in to him. People of like mind who came out of the Federalist Society network around the country,” he said. “And so it was like a farm team of potential judges. And he deserves credit for signing off on. I don’t think he fundamentally knew much about this before we got elected, but I give him credit for some really good recommendations.”

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Transcript :

ADRIAN FLORIDO, HOST:

The leaked draft opinion from the Supreme Court overturning Roe v. Wade has put Senate Minority Leader Mitch McConnell in the spotlight. He’s credited with installing the conservative majority on the high court. And if his party wins control of the House and Senate this November, he’s signaling Congress could vote on further restrictions on abortion.

McConnell talked about this and more in a wide-ranging interview with NPR’s Deirdre Walsh today on Capitol Hill. That’s where Deirdre joins us from now. Hi, Deirdre.

DEIRDRE WALSH, BYLINE: Hey, Adrian.

FLORIDO: If this leaked opinion ends up becoming the actual opinion, it would put the Supreme Court out of step with most Americans, who say consistently in polling that they support some right to abortion access. What did McConnell have to say about this?

WALSH: Well, he said it really wouldn’t be the first time that the Supreme Court and American public opinion weren’t in sync. He pointed to a case from 1989 when the Supreme Court struck down a Texas state law banning burning the United States flag. The court held then that burning the flag was protected speech. Here’s what McConnell said.

MITCH MCCONNELL: If you took public opinion polls on that issue, people would overwhelmingly support a legislative prohibition of flag burning. But the Supreme Court interpreted that as a violation of First Amendment freedom of speech. So for the Supreme Court to – on any issue to reach a decision contrary to public opinion is exactly what the Supreme Court is about; it’s to protect basic rights even when majorities are in favor of something else. It happens all the time. So I don’t think that’s particularly unusual.

FLORIDO: Given this division that he’s describing, though, is he worried about how the court will be perceived among the public?

WALSH: He is. I mean, there is declining public trust in the high court. But McConnell deflected that his party had anything to do with it and instead pointed at Democrats. Here’s what he said.

MCCONNELL: It’s no wonder that by politicizing the Supreme Court like the political left has, including the Democratic leader of the Senate, it would affect their approval ratings. That needs to stop. The president, who knows better, set up a commission to study the composition of the court. The Supreme Court is not broken and doesn’t need fixing.

FLORIDO: Deirdre, Democrats are retooling their message for the midterms and predicting that abortion could be a big factor. What did McConnell say about the potential fallout at the ballot box?

WALSH: He did acknowledge that it would be an issue in many races, especially at the state level. But he sort of downplayed what would happen in congressional races. Here’s what McConnell said about that.

MCCONNELL: I think we’ll find out what kind of an impact it is. I think one thing for sure – if this becomes the final decision of the court – and by the way, it may not. I mean, we’re talking about a hypothetical here. I’ve got three former Supreme Court clerks in my conference here in the Senate. They tell me the first draft is almost never where they end up, but we’ll see.

In terms of the politics of it, if, in fact, this becomes a final decision, I think it will be certainly heavily debated in state legislative and governor’s races because the court will have, in effect, returned this issue to the political process. My guess is, in terms of the impact on federal races, I think it’s probably going to be a wash.

FLORIDO: Well, both anti- and pro-abortion rights activists say that McConnell is the architect of the conservative majority on the Supreme Court. What did he tell you about whether this is something that he was aiming to do? Was this one of his goals?

WALSH: McConnell maintains that’s not what this is about. He says his interest in the movement goes back decades to when he was a staffer for the Judiciary Committee during the Nixon administration and to when he met Antonin Scalia and Robert Bork, two leading conservative legal figures, while working at the Ford Justice Department. He said his work was focused on a notion that Scalia stressed – judges should interpret the law using the original intent of the framers of the Constitution. Here’s how he talks about Scalia.

MCCONNELL: He ended up basically founding the Federalist Society while he was a professor at Chicago Law School, which developed a network of people who basically viewed him as the leader of the movement in the direction of trying to get judges back to making decisions, by and large, on what the Constitution and the laws seem to require. In fact, one of his most, I thought, famous comments was, you’re not a very good judge if you’re not occasionally unhappy with the outcome you reach because it’s not really your personal opinion.

FLORIDO: Deirdre, it’s worth noting that three of the justices now on the court were appointed by former President Trump. McConnell was instrumental in getting those justices confirmed. They’re justices who, in theory, would be signing on to this draft opinion overturning Roe v. Wade. What did he say about that?

WALSH: He really downplayed Trump’s personal involvement. And instead, he pointed to sort of joining and coordinating with Trump’s White House counsels, Don McGahn and Pat Cipollone, and saying that they were really the key to the nominations and confirmations of those three now-Supreme Court justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, and broader conservative justices on the lower courts. McConnell suggested Trump really wasn’t involved in the process. Here’s what he said.

MCCONNELL: Well, I think he took good advice. Honestly, he was not familiar with this issue at all. But as I have said – I’ll repeat again – he had two good White House counsels in a row who took recommendations in to him of people of like mind who came out of the Federalist Society network around the country. And so it was like a farm team of potential judges. And he deserves credit for signing off on them. I don’t think he fundamentally knew much about this before he got elected, but I give him credit for signing off on good recommendations.

WALSH: McConnell was criticized by Democrats for his decision back in 2016 to block President Obama’s nominee, Merrick Garland, to the Supreme Court when then-Justice Antonin Scalia passed away. I asked him, if Republicans win back control of the Senate and he becomes majority leader again, would he hold a vote on any future nominees to the high court from President Biden? But Leader McConnell declined to answer that question.

FLORIDO: That’s NPR’s Deirdre Walsh. Thanks.

WALSH: Thank you.

FLORIDO: And we’ll have more of Deirdre’s interview with Senator McConnell, including what McConnell says Congress can do to help assist efforts in Ukraine, both on Morning Edition and on NPR Politics Podcast tomorrow.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.