Mitch McConnell’s Court-Packing
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Excellent summary by Seung Min Kim of the various measures Mitch McConnell took to manipulate the personnel of the federal courts:
To get there, Republicans and the White House revised Senate rules and reversed key practices used by their Democratic predecessors in evaluating judicial nominees — traditions that some Senate Democrats said they should similarly disregard if they take control of the Senate.
Two of the most significant changes involve floor deliberations. During Gorsuch’s nomination fight in 2017, Senate Republicans invoked the “nuclear option” to change rules for Supreme Court nominees so that they no longer needed 60 senators to advance to a final confirmation vote. That effectively finished off the task Senate Democrats began in 2013, when they deployed the same maneuver to change confirmation rules for all executive branch picks and nearly all judicial nominees.
In 2019, Senate Republicans changed the rules to significantly trim back the time available for floor debate for district court judges. Before the change, nominations could be debated for a total of 30 hours before a confirmation vote, but GOP senators slashed that to two hours for all nominees except for those to the Cabinet, Supreme Court, the circuit courts and some independent boards.
A Biden White House and a Democratic-controlled Senate would certainly be able to take advantage of the floor changes by being able to confirm Supreme Court picks with a simple majority and processing district court nominees more quickly on the floor, should they prioritize the judiciary.
There are other practices generally used by the previous Democratic-led Senate that Republicans neglected. That includes the so-called blue-slip tradition for circuit court nominees — which effectively gave a home-state senator veto power for judicial picks from his or her state.
Using Congress’s explicit Article III powers to reform the courts wouldn’t be norm-breaking; the one and only norm that has guided Republican treatment of judicial nominees for 6 years is “we’re doing it because we can.” Dems don’t have to change the game, they just have to keep playing by the same rules.
Of course, getting there is going to require the Unilateral Disarmament caucus to come to its senses:
“No,” said Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee, when asked whether Democrats should offer deference to Republican home-state senators if they do not sign off on circuit court nominees from a Biden administration. “The rules have changed. Do I look stupid to you?”
Sen. Richard Blumenthal (D-Conn.), another Judiciary Committee member, also stressed that he believes Democrats “ought to play complete hardball” on judges.
“The question is whether we should allow states where there are two Republican senators to dictate who the judge here should be. I would say no,” Blumenthal said.
Still, some other Democrats are more cautious at this point about embracing some of those practices.
Sen. Christopher A. Coons (D-Del.) said he would have to think about whether he would support reinstating the blue-slip practice for circuit court nominees. Coons, perhaps Democratic presidential nominee Joe Biden’s closest ally in the Senate, also noted that the American Bar Association has “long played an important role of providing an early warning” of unqualified picks.
“We need to have a focused, deliberate conversation about, which are the features of the confirmation process from before that are constructive, appropriate, necessary and we want to restore, and which are the features that, frankly, given they’ve been broken, we’re not going to reinstate them?” Coons said.
Coons is being ambiguous enough that I hope this is a more-in-sorrow-than-in-anger setup to restore ABA ratings (who cares) but not the blue slip, but still Hirono’s response is the actually correct one, especially since the public doesn’t care about procedure.
If Dems need to firm up their resolve, just listen to this smarmy motherfucker and think of how satisfying it would be for the “good long time” to be “not even a year.”
“We’ve made an important contribution to the future of this country. A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election. Won’t be able to do much about this, for a long time to come.”
— @senatemajldr #SCOTUS
h/t @jasonjdick pic.twitter.com/XOm5c9FWRH— Howard Mortman (@HowardMortman) October 25, 2020
McConnell has indeed made a contribution to the country; whether it will ultimately be a positive one will depend on what Senate Dems do if they take control in 2021.