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March 19, 2016

I never took Mitch McConnell for a progressive. But his call to “let the American people” decide the next Justice of the Supreme Court brings to mind one of the most radical proposals of the early progressive movement.

In his battle for the 1912 Republican nomination, former President Theodore Roosevelt attacked incumbent President William Howard Taft, his protégé, for being insufficiently progressive.

Roosevelt was a mild progressive in office but became more radical as he fought to wrest control of the Republican nomination from the far more conservative Taft. In Columbus, Ohio in February 1912, he called for the ability to recall judges and to have popular votes on important decisions:

"when a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong."

This appeal to the people was the mantra for the progressive movement. Roosevelt, denied the nomination that summer, stormed out of the Republican convention hall and promptly created a party to advance his progressive agenda, the Progressive Party.

That party’s platform made its commitment to direct democracy plain. It called for primaries, initiative, referendum, the short ballot, recall, and the direct election of Senators. It specifically called for the rule by the people.

TR's progressives had other important commitments but the anti republican character of its platform and its nominee raised the ire of the normally placid Taft.

Taft was a man of judicial temperament. As President he had vetoed the statehood bill for Arizona because it allowed for the recall of judges. He couldn’t abide such a threat to the independence of the judiciary. Taft and the conservatives in the Republican Party, the latter of whom never much liked Roosevelt, were horrified by what they viewed as his descent into radicalism.

Taft’s constitutional conservatism was out of favor in 1912. TR’s split from the party helped bring another progressive, the Democrat Woodrow Wilson, into office. Over time, progressive principles of direct democracy would infuse themselves into our constitutional system.

Now, no one really believes that Mitch McConnell is a progressive in the spirit of the 1912 party.  Yet his call for allowing the people to decide the next Supreme Court justice is the kind of radical anti-republican stance many progressive favored then and are partial to now.

The Constitution calls for the Senate to give its advice and consent to judicial nominees. Our current crop of radicals insist that this provision doesn’t require the Senate to hold a hearing or a vote on a nominee, particularly when it is an election year and power is split between the parties.

It’s hard to conceive of a less compelling constitutional argument. The advice and consent requirement of the Constitutional has developed, over a long period of time, into a constitutional norm: the Senate gives, or does not give, its advice and consent through a hearing and a vote.

Mitch McConnell, radical progressive? On this issue, yes.

So this is where we are in today’s “conservative” party: a Senate faction of radicals that want more power to the people and a demagogue as its likely presidential nominee.

William Howard Taft’s defense of our constitutional norms and propriety is sorely missing and badly needed.

William Howard Taft, Progressive party, Mitch McConnell, Theodore Roosevelt

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