McConnell Plans Conservative Judicial Strategy Amid Health, Tax Battles

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By Nancy Ognanovich

Congressional Republicans keep running into obstacles as they try to deliver overhauls of health care and tax laws by year’s end, but Senate Majority Leader Mitch McConnell (R-Ky.) has one key priority he can pursue without considering politics outside his chamber: the confirmation of judges to serve on the federal bench.

While the debate rages on the next steps on repealing and replacing the Affordable Care Act and revising the tax code, McConnell is continuing to quietly pursue his goal of filling the federal judiciary at all levels with conservative jurists who could serve for decades.

After orchestrating the confirmation of Neil Gorsuch to serve on the U.S. Supreme Court this spring, McConnell now is setting the stage for the Senate to begin putting in place a long list of judges nominated by President Donald Trump for the federal district court and appellate courts.

Conservatives currently have the leverage to exert great influence on the federal judiciary, which has 140 vacancies. Once confirmed federal judges have lifetime appointments.

After a slow start by the White House initially to formally transmit its first picks after Gorsuch, there are now more than 50 judicial nominees in play, with 10 ready for floor consideration when the Senate returns Oct. 16 and more than 40 others working their way through the Judiciary Committee, in addition to the seven confirmed earlier this year.

Senate Majority Whip John Cornyn (R-Texas) said floor time for moving nominees has been scarce as legislation took precedence this summer. But now, Cornyn said, Republicans “should go for the gold” and take advantage of their majority status to confirm a slew of federal judges. Several of the judges in play would serve on district courts in Texas and on the U.S. Court of Appeals for the Fifth Circuit, which includes Texas.

“We’ve been sort of bogged down on health care but we’ve certainly been moving judges through committee and now we’re making them available for floor action,” said Cornyn, a former Texas Supreme Court judge who now serves as McConnell’s top lieutenant.

Gambles Seen Paying Off

McConnell’s unprecedented move to block any action on Merrick Garland, President Barack Obama’s nominee to serve on the Supreme Court, for the better part of a year was seen as the determining factor in Gorsuch’s confirmation in April. Gorsuch recently returned the favor by traveling to the majority leader’s hometown to discuss judicial philosophy at the University of Louisville’s McConnell Center.

The snub of Garland underscored McConnell’s years-long strategy of blocking Obama’s picks for the district and appellate courts, which has given Trump and the Republicans an opportunity to fill those vacancies with conservative jurists. In the past two years the Senate managed to confirm only 15 federal judges annually.

A little over a year ago there were almost 30 Obama judicial nominees approved in committee and waiting for Senate confirmation, with some available for floor votes for more than a year. Most of those nominations were returned to the White House at the end of the year after McConnell scheduled no action on them.

Laura P. Moyer, a University of Louisville political scientist, said leaving the court seats unfilled was another less noticed gamble by McConnell, particularly when it didn’t look likely that Trump would win the presidency.

“This has put the Republican party in a very advantageous position coming into this because there are a lot of vacancies,” Moyer said.

McConnell’s own interest in the federal judiciary partly reflects his earlier career in the law, including a stint as a deputy assistant attorney general in the Gerald Ford administration, where he worked with future Justice Antonin Scalia. But Moyer said she doesn’t consider McConnell a lawyer first.

“He loves politics, I think he loves the gamesmanship of it, he loves the strategy of it,” Moyer said. “He’s really interested in winning elections and it has been very, very effective for Republicans to invoke the judiciary and the Supreme Court. Criticism of courts generally is an effective strategy for Republicans over time and he knows that.”

`Golden Opportunity’ Seen for GOP

Jon Gould, a former Obama administration official who now is a professor at American University’s School of Public Affairs, said he expects Republicans will try to pack the federal courts with as many conservative judges as possible until they either lose the presidency or the Senate. Those judges are seen as an integral element of the GOP’s plan to defend the planned rollback of Obama-era laws and regulations.

“McConnell understands something maybe this White House doesn’t and [Obama chief of staff] Rahm Emanuel didn’t understand eight years ago: This is a golden opportunity for them to put the folks they want in jobs where they’re there for life,” said Gould, previously a senior policy adviser at the Justice Department. “I never understood why the Obama administration didn’t move faster the first two years of the administration to pack the judiciary. They had the chance, now Republicans have their chance.”

Greatly aiding McConnell’s effort is the rules change that Senate Democrats forced through when they still controlled the chamber. McConnell now can get judges confirmed with simple majorities rather than needing 60 votes to head off a filibuster threat.

Alicia Uribe-McGuire, a University of Illinois political scientist, said the main tactic left to the minority is the blue slip procedure, a tradition that allows home state senators to weigh in on the president’s choices for the district and circuit courts in their areas. In the past senators could hold up a nominee by not returning the slip signaling their support, but now even that practice could be eroded, she said.

“McConnell has made the statement that really the blue slip is more important for district court judges and that he would not be moving forward necessarily with considering it for circuit court judges,” said Uribe-McGuire, who studies judicial politics. “So again this is actually eliminating another possible opportunity for the minority party to have some say in the process.”

Moyer said, however, that some Republicans—including Senate Judiciary Chairman Charles Grassley (R-Iowa)—may disagree.

“My impression is Grassley may not see eye to eye with McConnell,” Moyer said. “Grassley seems a little bit more open to keeping the blue slip rule.”

What to Watch

Moyer and Uribe-McGuire said Republicans will focus on placing new conservative judges to shift the philosophical balance at key circuit courts. Trump’s recent nomination of judges for the Fifth Circuit isn’t seen as changing the already conservative-leaning court, they said, but other nominees could transform different courts.

Among the looming battles they are said to watch involve the following Trump nominees:

  •  Gregory Katsas to serve on the U.S. Circuit Court of Appeals for the District of Columbia. Katsas currently is deputy counsel in the White House Counsel’s Office and could face questions about the White House response to ongoing investigations into Russian meddling in the 2016 election. Grassley announced a hearing on his nomination Oct. 17.
  •  David Stras, a former clerk to Supreme Court Justice Clarence Thomas, to serve on the Eighth Circuit. Sen. Al Franken (D-Minn.) said he won’t return the blue slip on Stras, saying he’s likely to emulate Thomas and Scalia and move the already conservative Eighth Circuit even more to the right.
  •  Amy Coney Barrett, also a former Scalia clerk, to serve on the Seventh Circuit. Democrats withheld their support over concerns about her ability to separate her Catholic faith from her judicial decisions but the nomination was approved in committee Oct. 5.
  •  Gould said it’s possible Democrats may actively fight some of what they perceive to be the most egregious nominees, particularly if Roy Moore (R) ends up winning the Alabama Senate race. Moore is an outspoken conservative who twice was ousted from his job as chief justice of the Alabama Supreme Court.
“Democrats will start using judges who look like him as being the kind of people they are going to oppose and it will be part of a larger narrative for the Democrats and they might have some success with that—but only at the edges,” Gould said. ``

“The Republicans are going to be able to put almost anyone they want on the bench through January of ’19 and potentially even after that,” Gould said.

To contact the reporter on this story: Nancy Ognanovich in Washington at nognanov@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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