To read Monday’s op-ed by Senate Majority Leader Mitch McConnell, one might think it must have been a very bad April Fools’ joke. With a record of obstruction in the Senate as notorious as Senator McConnell’s, it is hard to take seriously his complaints about how Democrats have handled President Trump’s nominees. But since arguments about the Senate confirmation process can seem awfully inside-the-Beltway, let’s be clear about what this debate is really all about.
Over the last 40 years, as the Republican Party has been driven farther and farther toward the extreme right by ultra-conservative activists, Republicans began to realize that their policy agenda was too unpopular with mainstream voters to be enacted in the light of day, through the legislative process. The hard right understood that they would never persuade enough Americans to support ending women’s reproductive freedom, taking away health-care coverage, rolling back civil rights, abolishing safeguards for clean air and clean water or other extreme ideas.
Instead, they decided there was another route to achieving their policy goals, one that doesn’t require public support or legislation: the courts. So Republicans, pressured by the hard right and wealthy conservative donors, launched a sustained effort to pack the courts with very conservative judges — preferably young ones who could sit on the bench for decades. These prospective judges were identified as early as law school, having signaled their hard-right leanings through their writings and their membership in conservative groups such as the Federalist Society.
Take President George W. Bush’s nominee Miguel Estrada, who had no judicial experience, was a Federalist Society member but had no writings, and claimed he had never thought about Roe v. Wade. Or take another Bush nominee William Pryor, who called Roe “the worst abomination in the history of constitutional law.” Or take Charles Pickering, also nominated by President Bush, who had advocated for a reduced sentence for a man convicted of burning a cross in the front yard of an interracial couple. In the past, neither Democrats nor Republicans would have put forward such extremist nominees.
Sometimes, when a Democratic president was in the White House, this plan for what Senator McConnell has proudly called a “conveyor belt” of conservative judicial nominees has been interrupted. But Republicans have been undeterred, even under Democratic presidents. In such times, they chose to employ the extraordinary tactic of denying confirmation to Democratic president’s nominees in order to hold vacancies open until a Republican could regain the presidency. It was a way to nullify a Democratic president’s power to fill judicial vacancies.
We saw this tactic during the Clinton administration, when Republicans on the Judiciary Committee killed a number of President Clinton’s quite moderate judicial nominees — without even the basic courtesy of a hearing. We saw it again during the Obama administration, when Republicans used the filibuster and other forms of delay to more than double the number of Circuit and District Court vacancies. During President Obama’s last two years in office, the Republican Senate confirmed fewer Circuit Court nominees than in any Congress in 40 years.
Then, in March of 2016, led by Senator McConnell, Republicans took this maneuver to a new, Machiavellian low. They refused to even consider President Obama’s nomination to the Supreme Court of U.S. Circuit Judge Merrick Garland, one of the most respected jurists in the nation and a man known not only for his excellence and perfect judicial temperament, but also for moderation.
In fact, Senator Orrin Hatch (R-Utah), a conservative’s conservative and the former chairman of the Judiciary Committee, had previously endorsed Judge Garland for the Supreme Court. But the merits didn’t concern Senator McConnell. His cynical strategy required Republicans to block the Garland nomination for almost a year, until after President Obama’s second term ended. And that’s exactly what they did. It was widely condemned as a naked power grab that nullified a president’s constitutional authority. It was a terrible moment for our democracy and our Constitution. And yet Senator McConnell says it was one of his proudest achievements.
After President Trump took office, Senator McConnell sensed an opportunity to grease the conveyor belt even more, so he ordered the Republican Judiciary Committee Chairman to do away with the longstanding requirement that senators be consulted about circuit court judicial nominees in their home states. For generations, this “blue slip” consultation requirement ensured that judicial nominees reflected the ideology and values of the state to which they were nominated, and it provided some healthy counterbalance against nominees who were outside the mainstream or lacking in proper qualifications. Thanks to Republicans, led by Senator McConnell, that protection is now history.
So when Senator McConnell complains about Democratic handling of nominees, there’s no other word for it but hypocrisy. You don’t have to take my word for it: According to the Congressional Research Service, more circuit judges have been confirmed in the first two years of the Trump administration than at any time since President Harry Truman. Senator McConnell himself has celebrated the pace of confirmations. As he said a few months ago, “We confirmed every circuit judge. We’ve now done 29 circuit judges. That’s a record for this quick in any administration in history.”
For Leader McConnell to brag about confirming more judges than ever before and then complain about Democratic obstruction and say the process is broken so he has to change the rules is the height of hypocrisy.
Senator McConnell also complains about the pace of confirmation for President Trump’s executive branch and independent agency choices. He conveniently omits Republicans’ sorry record of obstruction of nominees to Democratic seats at important agencies like the National Labor Relations Board, the Federal Deposit Insurance Corporation and the Securities and Exchange Commission, which have suffered as Republicans caused dedicated public servants like former NLRB Chair Mark Pearce to languish for months or years.
I’m actually surprised Senator McConnell would raise the subject of executive nominees given the appalling history of incompetence, corruption and venality among President Trump’s so-called “best people” — not to mention the fact that there are hundreds of vacancies the president can’t even be bothered to fill.
Notwithstanding Senator McConnell’s apparent April Fools’ joke, staffing the government is serious business. And so is the system of justice assigned to our courts by the Constitution. They both deserve better than Senator McConnell’s constant efforts to turn the Senate into a conveyor belt for conservative ideologues.
Article originally published on POLITICO Magazine
Source: https://www.politico.com/magazine/story/2019/04/02/senate-republicans-nominations-agenda-226463
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The Article Was Written/Published By: Sen. Chuck Schumer
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