A publication of the Kentucky Center for Public Service Journalism

Bill Straub: Forget fair play, forget the ABA, just squeeze those questionable judges through

For reasons inexplicable, Democrats have never taken the appointment of federal judges as seriously as Republicans, who understandably place that particular task atop their priority list. Given the opportunity to secure control over one of the three branches of government – albeit one that is supposed to be non-partisan – is a prospect any politician with a lick of sense should jump on.

But former President Bill Clinton, as a for instance, rather notoriously refused to spend any political capital on getting his nominations through the Senate confirmation process. Barack Obama tried a little bit harder but it often seemed his heart wasn’t in it as he preferred dealing with other matters.

Meanwhile. Republicans are always fiddling with the federal bench. Ronald Reagan imposed a litmus test to assure that he nominated only prospective judges who opposed a woman’s right to an abortion. George W. Bush ignored ratings offered by the American Bar Association so he could appoint right-wingers who weren’t exactly considered the pick of the litter. And the current office holder, Donald Trump (EGADS!) is doing all he can take assure that he transforms the nation’s courts in his own image, which we all know does not present a pretty picture.

Senate Republican Leader McConnell, of Louisville, to his credit, has always understood the benefits of placing like-minded judges on the bench and his interest in this area can be cited as one of his few true achievements as Senate majority leader.

McConnell rather infamously blocked so many of Obama’s appointments to the lower federal courts that Senate Democratic Floor Leader Harry Reid, of Nevada, felt compelled to change the rules in 2013. Rather than requiring that 60 lawmakers agree to a vote on a nominee in order to proceed, Reid altered the requirement to a simple majority while maintaining the 60-vote threshold for Supreme Court nominees.

Even so, from the time of Obama’s inauguration in January 2009 to the imposition of the rule change, McConnell and the GOP effectively blocked 36 appointments.

While it can be argued, accurately, that McConnell’s filibustering strategy violated all standards of decency and fair play, it also establishes just how fixated Republicans are on the federal judiciary. And now that they’re in charge the GOP is taking full advantage of the opportunity.

As of May 15, the Senate has confirmed 39 judges to the federal bench, including Supreme Court Justice Neil Gorsuch. That includes 17 to district court judges, the lowest trial slots, and 21 to the various circuit courts who consider appeals from the district courts. Trump, with McConnell’s assistance, has now appointed nearly one-eighth of all circuit court judges in just 16 months in the White House.

McConnell is particularly focused on those appeals courts, telling Fox News that “circuit judges have my top priority.’’ The 21 appointments thus far are more than any of the five previous administrations to this point in a president’s term. Many of them, by design, are relatively youthful, the intent being to retain control Republican control for the next 30 to 40 years.

That list includes that carry the McConnell seal of approval – Judge John K. Bush, of Louisville, 53, of Louisville, and the newly-minted John Nalbandian, 49, of Union, who are now both seat on the U.S. Sixth Circuit Court of Appeals.

Democrats are aware of the GOP assault on the judiciary but don’t hold the cards to stop it. One thing they’re doing is using Senate rules to force 30 hours of debate on each nominee. Since there exist 147 vacancies with 73 appointments pending, Democrats can eat up a good portion of the time until the November elections when they could – although it’s unlikely – regain the majority.

In response, McConnell is considering a rules change, offered by Sen. James Lankford, R-OK, that would cut debate time from 30 hours to two hours if earlier action establishes the nominee has the votes for confirmation, meaning the GOP would be empowered to appoint judges as if they were herding cattle into a freight car. McConnell is still taking a gander at the proposal.

“…each deserves to be confirmed by this body and take their place on the federal bench,’’ McConnell said in a May 10 floor speech. “Our friends across the aisle aren’t making it easy, but despite the historic obstruction, this Senate will continue to do what it takes to process and confirm the president’s fine nominees for these important posts.”

McConnell also is considering canceling a portion of the four-week August recess. The rationale, ostensibly, is to work on spending bills. But the move would also keep vulnerable Democrats seeking re-election off the campaign trail and provide additional time for confirmation votes.

McConnell, who carries the reputation of being a Senate institutionalist, dedicated to the rules and culture of the sometimes opaque upper chamber, has proved to be anything but when it comes to judicial appointments. Truth be known, he’s ruthless.

In one of the great, almost unconstitutional breaches in American history, he outright refused to consider Obama’s nomination to the Supreme Court, Merrick Garland, after the death of Justice Antonin Scalia.

When Trump proved victorious in November 2016 the nomination fell in his lap. Democrats sought to filibuster his choice, Gorsuch, but McConnell unilaterally changed the rules, rendering it impossible to block a high court nominee. Gorsuch, who thus far has proved to be something other than a bright light among the justices, squeezed through.

And McConnell has effectively abolished the blue slip rule, at least for circuit court nominees. In the past, a senator from a judicial nominee’s home state could effectively block the appointment by refusing to submit a blue slip to the chairman of the Senate Judiciary Committee, the panel charged with conducting confirmation hearings. Sen. Tammy Baldwin, D-WI, sought to achieve that end by withholding her blue slip on Michael B. Brennan, of Milwaukee, Trump’s choice for a slot on the U.S. Seventh Circuit Court of Appeals. Her effort was ignored and Brennan barely made it through in a 49-46 vote.

Reid, who changed the original 60-vote rule in face of McConnell recalcitrance, has been criticized in some quarters for opening the Republican judicial spigot, allowing them to appoint judges willy-nilly with little if any consideration.

But the argument crumbles when it is noted that Reid had no choice given McConnell’s lackadaisical attitude toward fair play. Besides, is there any doubt that McConnell, the ersatz institutionalist who allegedly holds the Senate culture so close to his bosom, would have changed the rules to his advantage at the first opportunity? Get real. How do you think Gorsuch made it in? Mitch will get his judges. But without Reid’s change, Obama’s folks would still be sitting on the sidelines.

It should be noted that, in the past, the appointment of Republicans to the federal bench, in Kentucky, at least, has proved beneficial. William O. Bertelsman, Eugene Siler Jr., Joe Hood and the late John Heyburn – a close McConnell associate – all proved to be exceptional jurists and among the best in the nation. Other GOP appointees have also proved to be fine additions.

But the current process, under McConnell’s direction, will permit some questionable appointees to squeeze through the cracks. Three nominees have withdrawn because they were so godawful even Senate Republicans – who will go for about anything slipped under their noses – couldn’t stomach the idea of supporting them. Trump, like Bush before him, has opted to ignore the American Bar Association ratings. Regardless, of the 57 nominees who were rated, the ABA rated four not qualified.

The NKyTribune’s Washington columnist 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. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.

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