McConnell aims to reshape courts in case Senate flips
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McConnell allowed only 20 confirmations of district and circuit judges during Obama’s last two years, a modern low according to congressional statistics. Already he has confirmed 32 judges for Trump, including Supreme Court Justice Neil Gorsuch.
But McConnell isn’t close to being done: After confirming three judges last week, McConnell is preparing to confirm another group of them this spring. More than 30 lifetime judicial nominations are ready for the floor, and the Senate Judiciary Committee is continuing to churn them out in preparation for a long, slow grind on the Senate floor.
Democrats can delay but not stop these judges through procedural tactics, dragging out each confirmation several days if they wish. The minority party is furious that McConnell slowed Obama’s judges only to prioritize Trump’s, and say the majority leader is trying to enact a conservative agenda while circumventing the legislative process.
“Senate Republicans haven’t been able to move much of their hard-right agenda because it’s so unpopular with the American people, so they’re trying to do in the courts what they couldn’t do on the Senate floor,” said Senate Minority Leader Chuck Schumer (D-N.Y.).
McConnell is not considered a particularly ideological GOP leader, and is often agnostic about individual bills. He’s always eager to avoid dividing his conference on legislation, even bottling up bills supported by top Republicans if he believes putting them on the floor could ignite an internal firefight.
But judges are different. He realizes they will leave a mark far after his tenure as majority leader has ended and getting them confirmed is perhaps the most efficient way of securing conservative victories in a sharply divided Senate. Plus, it helps invalidate Obama’s legacy and shifts the courts away from the hundreds of more liberal judges confirmed during his presidency and under six years of then-Majority Leader Harry Reid (D-Nev.).
“That’s one of the lasting legacies of any administration and any Congress, because these people will serve 25 to 30 more years,” said Senate Majority Whip John Cornyn (R-Texas). “In terms of prioritizing our time and effort, I think that should be at the top.”
The strategy does have its downsides.
When the Senate is confirming judges, it often looks like the chamber is doing nothing. Cable news ignores it, the floor is often empty in a “quorum call” and headlines rarely highlight individual judicial confirmations. And some GOP senators, like Ted Cruz of Texas, think Republicans “should be doing much more” to pass conservative legislation.
Trump himself has called out McConnell at times for not doing more to advance his legislative agenda. McConnell said this week he has a ready retort for those that think the Senate GOP isn’t doing enough: He’s quietly setting records while few are paying attention.
“We’ve confirmed 12 circuit court judges last year. … No president had 12 confirmed in the first year. So we’re putting a priority on changing the courts. And the kinds of people the president is sending up and we’re confirming are relatively young and extremely bright,” McConnell said Thursday at the Independent Insurance Agents & Brokers of America conference.
The focus on the courts is also an acknowledgment of another reality by the majority leader. His slim 51-seat majority simply doesn’t have the numbers to try to repeal Obamacare again or pass another round of tax cuts, let alone do something like overhaul the nation’s infrastructure.
So he’s keeping his eye on one of the few things that unites Republicans these days. And he’s reminding conservative voters that the Senate is important to hold, even if Republicans lose the House.
“It’s something we can do. It takes a long time, it’s tough, but it’s something that we can stick together on,” said Sen. Jeff Flake (R-Ariz.). “So it’s only natural that you gravitate to that.”
The danger to McConnell’s agenda is that Democrats will go even further when they are back in charge, withholding Supreme Court seats from Trump or a future Republican and upending the entire confirmation process. And the ongoing judicial wars show no sign of abating, worrying members of both parties about the precedent that is being set with increasingly partisan judges and parliamentary conflict over their confirmations.
Democrats lowered the filibuster threshold to a majority vote in 2013, and then confirmed 89 judges in 2014, the most in 20 years. McConnell responded when he took back the Senate by blocking Supreme Court nominee Merrick Garland from ever having a hearing in 2016.
Now Democrats are delaying many judges and Republicans are mulling another rules change to cut the number of hours of debate that Democrats can insist on, from 30 to 8. Meanwhile, Democratic input over judges is declining as Republicans sometimes ignore the “blue slip” process that calls for home state senators to approve judicial nominees.
If they are back in control next year, Democrats are sure to consider cutting off the judicial pipeline in case they win the White House in 2020.
“Mitch McConnell now tries to take advantage of all that delay he created and those spaces,” said Sen. Cory Booker (D-N.J.). “I don’t know if they’re going to regret this come five years from now.”
The simple majority threshold and lack of bipartisan input has translated to lower quality nominees, according to critics. The White House has given GOP senators more latitude than usual in proposing district court nominees and several have embarrassed themselves in confirmation hearings and ultimately withdrawn.
“It’s their highest priority,” said Senate Minority Whip Dick Durbin (D-Ill.). “They want to put Federalist Society extremist judges by and large into lifetime appointments. They think they can change the face of America.”
On Thursday before the Senate left town, McConnell quietly set up votes on another Circuit Court nominee: the 15th of this Congress. So if it looks like the Senate is twiddling its thumbs next week, there’s a good chance the majority leader is actually looking to fill another vacant court seat for a generation.
“It is a very high priority for Sen. McConnell,” said Sen. Lamar Alexander (R-Tenn.), perhaps the GOP leader’s closest friend in the Senate. “When Democrats are slowing down all nominations and Sen. McConnell has to use most of the week to do one nomination, he’s going to pick a circuit judge almost every time.”
Eliana Johnson and Zachary Warmbrodt contributed to this report.
