Senate Republican Leader Mitch McConnell, who hasn’t had an easy time of it lately – reference his fellow Kentuckian, Sen. Rand Paul – has stepped in it yet again.
Appearing recently on a radio show hosted by conservative commentator Hugh Hewitt, McConnell proudly proclaimed that the Senate thus far in 2015 has approved judicial nominees exclusively at the district court level. Only those who carried the support of Republican lawmakers made it through the confirmation process.
McConnell boasted that practice likely would continue – a statement certainly indicating that those nominated to slots on the various federal courts of appeal would not be considered.
“And do you expect that that will continue to be the case for the balance of this session?” Hewitt asked.
“I think that’s highly likely, yeah,” McConnell said.
In making his plans known, McConnell, as has been his recent wont, made a commitment he couldn’t possibly keep. He wants to, above all, maintain the GOP majority in the Senate after the 2016 elections and failing to confirm federal court nominees would almost certainly render that aim tenuous. Republicans currently hold a four-seat majority and Democrats already are expected to make at least a modest gain given that the presidential race will head the ballot.
Sen. Pat Toomey, R-Pennsylvania, for instance, is expected to face stiff opposition in a state that has consistently gone Democratic in presidential election years. A Pennsylvania seat is open on the U.S. Third Circuit Court of Appeals and Toomey has endorsed President Obama’s nomination of U.S. District Judge Luis Felipe Restrepo. Toomey already is under pressure to address the situation and has offered assurances that the seat will be filled. So Any failure to get his choice through would not only establish that Toomey carries little influence but further alienate the growing Latino vote — Restrepo was born in Colombia.
And McConnell wouldn’t be doing himself any favors. Kentucky Supreme Court Justice Lisabeth Hughes Abramson, who hails from McConnell’s adopted hometown of Louisville, is thought to be in line to succeed Boyce Martin, of Louisville, who resigned in August 2013 as a judge on the U.S. Sixth Circuit Court of Appeals in Cincinnati. Abramson, from all indications, is a superior judge and likely would whizz through the nomination process if she is, indeed, Obama’s choice.
That vacant position has been declared a “judicial emergency’’ by the Judicial Conference – one of 26 currently unfilled slots so designated. If McConnell followed through with his threat, Kentucky would be a vote short on the Sixth Circuit for at least four years, perhaps longer. And there is no assurance a delay would provide McConnell with a judicial nominee more to his liking if a Democrat (cough, Hillary Clinton, cough) follows Obama in the White House.
And that’s just the circuit courts. Overall there exist 58 vacancies on the combined circuit and district levels – including two district seats in Kentucky. And the Judicial Conference lists 22 future vacancies, citing anticipated resignations and retirements.
In other words, McConnell would be creating an unholy mess if he ignored Obama’s judicial nominations. Civil trials would literally be backed up for years and it would be hard if not impossible to hold criminal trials in a timely manner as required by the U.S. Constitution.
As it is, McConnell has been slow-walking federal judicial nominees. Since assuming control of the upper chamber in January, the GOP majority has approved only four federal judgeships. During the last two years of their presidencies, when the Senate was controlled by opposing parties, Republicans President George W. Bush managed to get 10 appeals court judges confirmed while Democratic President Bill Clinton got 15 and Republican Ronald Reagan got 17. Democrats are starting to take notice. Sen. Patrick Leahy, D-Vermont, the former chairman of the Senate Judiciary Committee, asserted that Republicans are “failing to govern responsibly’’ when it comes to filling “judicial vacancies where they are needed.’’
Added Senate Democratic Leader Harry Reid, of Nevada, “We’re now here with the statements ringing loudly that the majority leader is intent on writing off the Senate’s constitutional duty of offering our advice and consent.”
Aware of the growing backlash, McConnell sent a spokesman out to deny the majority leader said what he obviously said.
“He said nothing of the sort,’’ said press aide Don Stewart. “He said we’re going to continue to do judges. There’s not a shutdown. We probably will have a circuit court nominee.”
“…probably will have a (singular) circuit court nominee.’’ Heartening indeed.
So, as is often the case with McConnell, the question that needs to be posed is: What game does he think he’s playing? There are several possibilities.
It could be a McConnell gambit to force Obama to adopt Republican positions on some legislation – appropriations bills are going to begin piling up shortly – in return for judicial confirmations. If so it’s a rather farcical strategy since the president will simply resort to nominating folks he wants without conferring with lawmakers of either party – something he has consistently done from all indications. And the pressure remains on McConnell, unless he’s willing to maintain a trio of judicial vacancies in Kentucky for three years or more.
So strike that.
It could be he got carried away and was simply playing to the hardcore conservative audience that remains steadfastly opposed to anything Obama tries to accomplish. The remarks were made on a right-wing broadcast and undoubtedly those listening in reacted like hicks at a hoochie-koochie show. McConnell has, after all, had his problems with the Tea Party wing, and halting the flow of judicial nominees could attract favorable notices and enhance his stature within the party.
The problem, of course, is there is no way he can keep his word. Several Senate Republicans, including both GOP lawmakers from Alabama, are working with the administration to firm up nominees for open slots. Ultimately more Obama nominees will be confirmed, giving the far right yet another opportunity to proclaim he caved into the liberals, thus confirming their virulent feelings toward him.
It’s possible he misspoke, although McConnell throughout his public life has been assiduous in his comments. If that were the case, why wouldn’t he just say so instead of denying he made the remarks in the first place?
The most reasonable explanation is he just can’t withstand the urge to poke Obama with a stick, asserting his feelings of superiority and letting the president know that he, Addison Mitchell McConnell, is going to use judicial nominations to bully him.
McConnell has, after all, come in second best in most of his confrontations with Obama. The Affordable Care Act is on the books. Taxes were raised on those making in excess of $250,000. Steps were taken to address the Great Recession – to McConnell’s dismay – and the economy finally seems to be evening out.
That undoubtedly wears on McConnell, the master strategist, who continues to view Obama as a greenhorn who can’t, or at least shouldn’t, get the better of him.
In many ways McConnell is like Aron Nimzowitsch, a chess grandmaster of the 1920s and ’30s who found himself on the short end of a match with Friedrich Saemisch, who he considered an inferior player. As the game neared its conclusion Nimzowitsch stood on the table and screamed for all to hear, “Why must I lose to this idiot?’’
McConnell wonders the same thing.
Washington correspondent 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. He currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.