Bench Memos

Law & the Courts

Slate’s Crank Complaint Against Mitch McConnell

If a field of study could file a libel claim, then the noble enterprise of jurisprudence would have quite a case against the mess of articles that Slate routinely publishes under that label. Today’s article by Dahlia Lithwick and law professor Tobias Barrington Wolff, titled “Mitch McConnell Is Cranking Out Lame-Duck Judges,” could be Exhibit 13,764. It’s Lithwick and Wolff who are being the cranks.

Some examples:

1. Lithwick and Wolff contend that Senate majority leader Mitch McConnell is breaking “a 125-year precedent” by “pushing through yet more judges even after his party has lost the presidency in a national election (and may still lose the Senate).” (Emphasis in original.)

Does the name Stephen Breyer ring a bell? Anyone professing knowledge about the judicial-confirmation process ought to know that President Jimmy Carter nominated Breyer to the First Circuit after Carter lost his re-election bid in November 1980 and after Republicans won a whopping 12 seats in that election to gain control of the Senate by a large margin in the next Congress. (The election was on November 4; Carter nominated Breyer on November 13.) The Democratic-controlled Senate promptly confirmed Breyer’s nomination.

It would be one thing to try to explain why the Breyer confirmation is somehow consistent with the supposed “125-year precedent.” But it’s quite another thing to just ignore it, as Lithwick and Wolff do.

It’s also worth noting that in every year since 1968—except this year and 1980—in which a “party has lost the presidency,” the other party has held control of the Senate. There is ample reason to believe that it is that elementary fact of power politics, rather than a supposed precedent no one had ever heard of, that explains the dearth of post-election confirmations in recent decades. That opposite-party hypothesis would also explain why there were no post-election confirmations in 1988 and 1996, even though the party that held the presidency retained the presidency. But this point escapes Lithwick and Wolff.

One other point regarding 1980: From what I can tell (though I’m not certain that I’ve been able to find a comprehensive database), Carter did not even have any district-court nominees pending at the time of his re-election defeat, so it’s not as if the Democratic-controlled Senate refrained from acting on his nominees. [Addendum (3 p.m.): It appears from this database that there were a dozen or so district-court nominees of Carter’s who were pending at the time of the 1980 election. The earliest of these was nominated in May 1979. Given that later nominees were confirmed, it would appear that they faced significant Democratic opposition. I might be mistaken, but I have dimly in mind that Teddy Kennedy, as chairman of the Judiciary Committee, refused to move nominees who maintained their membership in clubs that had a record of racial discrimination.] In fact, Carter appointed a whopping 154 district judges in 1979 and 1980 alone, and his latest district-court nomination in 1980 was made on September 17 and confirmed a mere nine days later. By contrast, more than half of the Trump nominations that the Senate has confirmed since the election were made more than five months ago.

2. To give “a sense for the magnitude of the star chamber Mitch McConnell has made of the judicial nominating process,” Lithwick and Wolff cite three other bad things for which he is supposedly responsible:

a. “The threat of filibuster for extraordinary cases: gone.”

What?!? Have Lithwick and Wolff somehow forgotten that it was Democratic Senate majority leader Harry Reid—not McConnell—who engineered the abolition of the filibuster for lower-court nominees in 2013? (It’s clear in context that Lithwick and Wolff are talking about the filibuster for lower-court nominees.) The incompetence and/or deception that underlie their blame of McConnell is staggering.

b. “A decades[-]long tradition of blue slips allowing home-state senators to block unqualified nominees: gone.”

The blue-slip policy remains in full force for district-court nominees. The veto it gives to home-state senators of the opposite party explains why there are longstanding vacancies without any nominees in states like Massachusetts, New Jersey, and Washington and why Trump has re-nominated and appointed various of President Obama’s judicial nominees and struck deals with Senate Democrats on many others.

In late 2017, then-Senate Judiciary Committee chairman Chuck Grassley (not McConnell) demoted the blue slip for appellate nominations: No longer would home-state senators be able to veto an appellate nominee on ideological grounds. Instead, the blue-slip privilege would operate only to ensure that the White House had adequately consulted with home-state senators about the nomination. As Grassley put it, he was “restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years.” By Ian Millhiser’s account in Vox, it was Democratic senator Pat Leahy, Judiciary Committee chairman from 2007 through 2014, who elevated the blue slip to a veto, in a departure from earlier practice. So much for a departure from a “decades-long tradition.”

Lithwick and Wolff are also wrong to imagine that the blue slip is generally used to “block unqualified nominees.” The blue slip arose, and is best defended, on the ground that no senator wants to have his political enemy preside over his corruption trial. It more recently grew into an ideological weapon. It has little if anything to do with preventing unqualified nominees and in fact helps ensure that senators of the same party as the president have special clout to get their unqualified cronies nominated.

c. “Qualification review and approval by the American Bar Association: gone.”

The Trump administration, like the George W. Bush administration before it, removed the ABA from the privileged pre-nomination role that other presidents had accorded it. But the ABA has continued to rate every judicial nominee.

Further, President Trump’s nominees have done very well, notwithstanding the ABA’s liberal bias. As Jonathan Adler has summed things up, “Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received “Well Qualified” ratings from the American Bar Association than any recent President save for George W. Bush,” and “the pattern [over the past two years] is the same.”

More broadly, as even Millhiser, a fierce opponent of Trump’s nominees, has acknowledged, “based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.” [I added this last sentence to my initial post.]

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