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Bill Straub: McConnell put energies into court appointments (to little avail); Biden can do better


Senate Republican Leader Mitch McConnell, as benevolent as ever, has graciously decided to forgive U.S. Circuit Court Judge Merrick Garland for pursuing a Supreme Court appointment he intended to steal and will support Garland’s nomination to serve as attorney general.

What a guy!

Garland, you’ll recall, was nominated by then-President Barack Obama, a Democrat, in March 2016 to fill the high court seat left vacant by the death of Justice Antonin Scalia. That didn’t meet with McConnell’s favor and, noting it was a presidential election year, he insisted that the next resident of 1600 Pennsylvania Avenue should perform the honors, even though whoever that person might be wouldn’t be sworn in for 10 months.

And so it went. McConnell refused to so much as meet with Garland or call for a confirmation hearing. As we all know, that great constitutional scholar, one Donald J. Trump, a Republican, became the next president, to much of the nation’s horror, told Garland to take a powder and nominated Justice Neil Gorsuch to the post.


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

You’ll also recollect that Mitch wasn’t much bothered by the fact that when Justice Ruth Bader Ginsburg died in September 2020, less than two months before a presidential election, he tut-tutted about his previous position and determined that fellow Republican Trump might just as well go ahead and fill that slot too rather than leave it to the next president, who turned out to be Democrat Joe Biden, propriety and fair play be damned.

All this maneuvering has provided Addison Mitchell McConnell with a mythical quality in numerous political and journalism salons, a veritable Svengali who isn’t simply playing fourth dimension chess – by golly, let’s make it something like 10th dimension – while everybody else plays tiddly winks.

McConnell’s primary focus during his tenure in Senate leadership has been to transform the federal judiciary, from the Supreme to the District courts, so they more reflect the legal precepts of Justice Roger Taney than Justice William Brennan. And he has sought to accomplish that end by hook or by crook. Mostly by crook.

It’s difficult, if not impossible, to identify an individual throughout American history who has worked harder to politicize the federal judiciary than McConnell, seeking over the years to make it a hotbed of conservative privilege. Ed Meese, during his time as attorney general under President Ronald Reagan, may have sought to impose a right-wing litmus test on potential nominees to the bench but he didn’t have his grimy meat hooks on the apparatus to see the ideal through like our boy Mitch.

As his former chief of staff Josh Holmes told the PBS show Frontline in 2018, “McConnell knows that from a legacy point of view, from a view of center-right America, this is the most important thing you can do.”

Even during his earliest Senate days McConnell was playing politics with judicial appointments. Before his arrival in 1985, Sen. Wendell Ford, D-Owensboro, and Sen. Walter “Dee’’ Huddleston, D-Elizabethtown, the man McConnell defeated, had established bipartisan Judicial Nominating Commissions to forward recommendations to the president based on qualities other than party affiliation. McConnell had hardly set his bags down before dismissing the idea, providing him with the opportunity play political games with the Reagan administration.

McConnell worked tirelessly during the final years of the Obama presidency to waylay his judicial appointments. According to the Congressional Research Service, only 28.6 percent of Obama’s nominees were confirmed during the last two years of his presidency.

McConnell took full credit for it, if credit is the right word. During an interview with Sean Hannity the Fox News host wondered aloud why Obama left so many judicial vacancies.

“I’ll tell you why — I was in charge of what we did the last two years of the Obama administration,” McConnell said, modesty, as usual, overcoming him.

McConnell filibustered so many Obama court nominees – including two for the prestigious U.S. Circuit Court of Appeals for the District of Columbia – that then-Senate Democratic Leader Harry Reid, of Nevada, abolished the procedure for judicial nominees save for those under consideration for the Supreme Court.

McConnell warned Reid would rue the day he invoked that change but the Democratic leader did manage to get his two judges on the DC circuit, furthering its liberal tilt. Thereafter, when the GOP gained the Senate majority, McConnell changed rules to prohibit the filibuster of Supreme Court nominees as well, allowing him to push Gorsuch through. He further abolished the “blue slip’’ rule, a privilege provided to senators that allowed them to approve or reject presidential judicial nominees destined for their home states.

So there’s no doubt that any criticism regarding the politicization of the federal courts has to start with Mitch McConnell.

The funny thing is, if you go by the numbers, he hasn’t been nearly as successful as everyone seems to think. It wouldn’t be accurate to say he was all hat and no cattle on the subject, but the herd has certainly been culled down some.

Consider:

Trump, with McConnell providing the push, appointed 231 Article III judges, that’s those who serve on the Supreme Court, the Circuit Courts of Appeal and District Courts. The total number of Article III judges is 865, meaning Trump appointed a tad less than 27 percent of those presently serving.

That total 231 represents the second fewest appointments by a president since 1976 when Democrat Jimmy Carter, a one-termer like Trump, appointed 259. Only President George H.W. Bush, another one-termer, appointed fewer – 192. For the record, Reagan appointed 377, President Bill Clinton got 373, President George W. Bush had 325 and Obama likewise rounds out the list at 325.

Records indicate that Trump replaced six Obama judges, meaning Trump’s predecessor still has 88 more nominees sitting on the courts than he does.

Interestingly, of the 54 judges Trump appointed to the 12 circuit courts of appeal, 35 – or 65 percent – replaced judges who had been appointed by previous Republican presidents dating all the way back to Gerald Ford, who left office in 1976. The numbers are similar on the District Court level, the 174 Trump appointees replaced 117 previous GOP office holders, or about two-thirds at 67 percent.

As noted previously the U.S. Circuit Court for the District of Columbia, is considered the nation’s second most important court, hearing contentious issues sitting in the seat of government. It handles a bigger caseload than the Supreme Court, which is pickier about the cases if hears.

Trump made three appointments to the DC Circuit, all right of center. The new judges replaced two Republican appointees and one Democrat. Regardless, Democrat appointees outnumber Republicans 7-4 and there are two open slots to be filled – including Garland’s if he is confirmed as attorney general. So McConnell’s gyrations will carry little impact here.

It should also be noted that, despite McConnell’s best effort, Biden already has 59 judgeships to fill. And, according to the United States Courts website, another 27 will soon be opening up as a result of retirements and judges assuming senior status. All that will further lessen the Trump-McConnell effect.

McConnell proponents will argue, with some merit, that the Trump appointments will carry a longer term influence because, taken as a group, they are younger than the nominees of previous presidents and, therefore, will serve on the bench for an extended period, leading to a grand, right-wing renaissance.

The truthful answer to that is maybe.

Let’s talk money. A circuit court judge earns $229,500 annually. District judges get $216,400. Both receive good benefits. While it ain’t chicken feed, many if not most federal judges can make more money in the private sector. Some of Trump’s appointees are so young, some in their thirties and many in their early forties, that they haven’t had a real opportunity to haul in the big bucks yet. Many a white shoe law firm would be ecstatic to offer a partnership to a man or woman they can call judge in the board room. In return, the “Judge” can spend the afternoon lunching at the Ritz and teeing off at the country club as opposed to sitting in a courtroom listening to people argue.

How many are going to take a hike before they reach retirement age?

Now, leave us make some observations in McConnell’s behalf. Had Trump succeeded in winning a second term, he undoubtedly would have set some record for judicial appointments. But he didn’t, thank God, and the advantages he obtained may quickly fade.

Republicans have unquestionably made gains on the Supreme Court level. That will present problems, especially for abortion rights proponents and defenders of voting rights. And it appears the banc that used to be referred to as the Nine Old Men – that obviously doesn’t fit anymore – is hell for leather to extend religious liberties to the extent of making bigotry socially acceptable.

But Justice Samuel Alito and Justice Clarence Thomas are both in their seventies. They’ll certainly want to remain during Biden’s term, hoping a Republican wins the presidency in 2024. But if Democrats retain the high ground, how long will they want to push through?

And one other thing should be said in praise of McConnell – his focus on the federal court system is well placed even if his underhanded tactics are not. Neither Clinton nor Obama, the last two Democratic presidents, were willing to pay the political capital necessary to provide the courts with the attention they merit.

That should change under Biden, the former chairman of the Senate Judiciary Committee. If not, Democrats will get what they deserve.


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