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House Minority Leader Kevin McCarthy has spent the last year making strange and unfortunate decisions, and as NBC News reported yesterday, the California Republican added to the list with an unnecessary appeal to the U.S. Supreme Court.
House Minority Leader Kevin McCarthy is asking the Supreme Court to overturn the proxy voting rules that the House implemented because of the pandemic, a tool that Republican lawmakers have taken advantage of themselves.... It's unclear if the Supreme Court will even respond to McCarthy's request.
This isn't likely to go well.
Let's recap how we arrived at this point. As regular readers may recall, as the Covid-19 crisis started taking a severe national toll last year, House Democratic leaders came up with a temporary fix intended to limit lawmakers' exposure. Under the plan, lawmakers who hoped to avoid the floor of the Capitol – because they were experiencing symptoms, because someone in their household was ill, etc. – could cast votes by proxy.
It wasn't complicated: Members could reach an agreement with like-minded colleagues, who in turn would agree to vote on their behalf. The system ensured that many representatives could participate in the legislative process during a pandemic without endangering themselves or their colleagues.
For reasons I've never fully understood, Republicans were outraged – or at least said so in public. It led McCarthy and 20 other GOP House members to file a federal lawsuit in May 2020, challenging the constitutionality of proxy voting.
A district court rejected the case, concluding that it wasn't up to the judiciary to intervene in how the legislative branch established its own procedural rules. In July, a federal appeals court unanimously agreed and threw out the case. Even a Trump-appointed appellate judge concluded that the case deserved to be rejected.
And yet, the House minority leader is fighting to keep the case alive anyway.
There is a degree of irony to the circumstances. While GOP lawmakers initially cried foul when Democrats created the proxy system, many Republicans have since embraced the model with some enthusiasm.
Indeed, though the system was intended to address the Covid-19 crisis, some Republicans haven't just accepted the proxy rules, they've also abused them – voting by proxy while appearing at events such as the Conservative Political Action Conference. McCarthy and other GOP leaders – the ones who literally made a federal case out of the temporary model – said very little when their own members started taking advantage of the system.
As for the road ahead, the Supreme Court appears unlikely to take the case. McCarthy probably knows this, but he may hope to get another couple fundraising appeals in front of prospective donors, boasting about taking a fight against House Speaker Nancy Pelosi's policy all the way to the highest court in the land.
As for Pelosi herself, when the proxy system was first created, it was designed to be temporary, with the House Speaker in a position to extend the emergency authority every 45 days.
Last month, Pelosi extended proxy voting through at least Oct. 1. The sooner more Americans get vaccinated and the country returns to normal, the sooner McCarthy's lawsuit will become moot.