A law review article written in 1970 by a young Senate lawyer said “the president is presumably elected by the people to carry out a program, and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform.”
The author was Mitch McConnell, now the Senate majority leader.
Political considerations, he wrote in the Kentucky Law Journal, tend to “degrade the court and dilute the constitutionally proper authority of the executive.”
McConnell, as anyone following the news knows, is espousing a radically different view regarding the present vacancy on the U.S. Supreme Court.
His pronouncement a few hours after the death of Justice Antonin Scalia that the Senate won’t consider any nomination by President Barack Obama has ignited a political war that can only fuel a growing concern that the courts are becoming another partisan branch of government.
And the nation’s highest court isn’t the only one being degraded by the crass politicization of the judicial confirmation process.
Since the Republicans assumed control last year, the Senate has confirmed just two Obama nominees to any U.S. Circuit Court of Appeals.
There are presently nine vacancies on the 12 circuit courts, which are just one step below the U.S. Supreme Court and have the final say on issues that aren’t decided by the high court.
GOP senators, including Judiciary Committee Chairman Charles Grassley of Iowa, insist there is no moratorium on Obama’s nominees. The record suggests otherwise.
Obama has four pending circuit court nominations, none of whom has come up for a vote on the Senate floor or even a confirmation hearing.
Among Obama’s recent predecessors, four of President George W. Bush’s circuit court nominees were confirmed during his final year in office, as were eight of President Bill Clinton’s nominees, 10 of President George H.W. Bush’s nominees and seven of President Ronald Reagan’s nominees. A Democratic-controlled Senate confirmed Reagan’s final appeals court appointees barely three weeks before the 1988 election.
Presidents traditionally consult with senators before nominating federal judges in their states, underscoring another venerable tradition — the judiciary as a nonpartisan wing of the government. Republican senators haven’t signed off on anyone Obama suggested for a circuit court judgeship since the 2014 election.
McConnell had this to say about Obama nominees in a radio interview last summer: “So far, the only judges we’ve confirmed have been federal district judges that have been signed off on by Republican senators.” He went on to say that it was “highly likely” that the Senate would stick with that approach for the rest of the 114th Congress.
(The district courts are trial courts, and their decisions aren’t binding on other courts.)
McConnell’s law review article wasn’t his final defense of presidential appointments. Speaking on the Senate floor in 2008, he denounced Democratic claims of an informal rule against confirming judges in an election year. “This seeming obsession with this rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees who are waiting to fill badly needed vacancies.”
Neither party has clean hands on this issue. But McConnell was right in 1970. He was right in 2008. And he ought to stick to his principles in 2016.