Hardball: McConnell Changes Rule to Overcome Obstruction of Trump's Judicial Picks, Dems Fume

Posted: Oct 11, 2017 1:05 PM

This may seem like an abstruse parliamentary maneuver -- and it is -- but Mitch McConnell just escalated the judicial wars in a minor but meaningful way.  If frustrated conservatives want the GOP Senate majority to "start acting like one," McConnell's decision eliminates a lever Democrats have been using to stymie some of President Trump's judicial picks.  In that sense, he's very much acting like a majority leader; a Democratic one.  Try not to let your eyes glaze over as you read the details of this move, which involves dramatically reducing the power of so-called "blue slips" on judges, with which Senators from the home state of a presidential selection have been able to withhold their consent in order to prevent that nomination from moving forward.  Not anymore.  McConnell warned Democrats that he was leaning this direction last month, hoping they'd abandon this form of partisan blockade.  They didn't.  So he's followed through on his threat -- via the Weekly Standard:

- Confirming judicial nominees has been elevated to a top priority in the Senate. “I decide the priority,” McConnell said in an interview. “Priority between an assistant secretary of State and a conservative court judge—it’s not a hard choice to make.” And when nominees “come out of committee, I guarantee they will be dealt with,” McConnell said. “Regardless of what tactics are used by Democrats, the judges are going to be confirmed.”

- No longer will “blue slips” be allowed to deny a nominee a Senate Judiciary Committee hearing and vote on confirmation. In the past, senators have sometimes barred a nominee from their state by refusing to return their slip to the committee, thus preventing a hearing and confirmation. “The majority”—that is, Republicans—will treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball,” McConnell told me. The use of blue slips, he noted, is not a Senate rule and has “been honored in the breach over the years.” Now it won’t be honored at all.

- The so-called “30 hours rule”—which provides for 30 hours of debate on a nominee—won’t be overturned. But McConnell vowed to set aside time for these debates. And he can make this happen because he sets the Senate schedule.

- Since Trump was inaugurated, judicial vacancies have grown from 106 to 149. Upcoming resignations will boost the number of vacancies to 166. The possibility of losing control of the Senate in 2018 has added to the concern among Republicans about the losing the chance to maximize the conservative influence in the federal courts. This, McConnell said, “is another reason to more quickly.”

Say what you will about McConnell, he's been stone cold on this surpassingly important issue.  Let's address each bullet point, starting with the last one:  First, even if this "unified" Republican government is paralyzed by disagreement, disunity, and inaction -- from healthcare to tax reform -- one lasting legacy that they flatly cannot and must not fail to cement is filling the federal courts with constitutionalists.  Democrats exploded the minority's ability to thwart judicial appointments via the filibuster in 2013 after pioneering the practice as a partisan weapon during the Bush administration.  Republicans finally fought back and answered in-kind during the Gorsuch nomination.  Democrats will retaliate the next chance they get, so the GOP must take advantage of the Obama/Reid precedent as aggressively as possible while they control the presidency and US Senate.  There is no excuse not to populate those 166 vacancies with young, capable, smart conservatives.  Thus far, President Trump's judicial nominees have been absolutely stellar.  A lot more, as soon as possible, please.

Second, maintaining the "30 hours rule" is a reasonable accommodation, even as some critics would prefer to see the debate limit sliced by nearly three-quarters (down to eight hours) to expedite the process.  McConnell's plan for keeping the trains running on time will likely force Democrats to employ their slow-walking tactics at extremely inconvenient times, including overnight hours.  Third, the "blue slip" change is the most significant shift McConnell has engineered here. It's the one Democrats are howling over, even though I strongly believe that Republicans are correct that Democrats would do the exact same thing if the roles were reversed.  Their history of unprecedented aggression in these battles is well established.  Ed Morrissey also points out that this gambit isn't exactly wiping away centuries of sacrosanct tradition: 

This definitely escalates the long-running judiciary wars in the Senate, but the blue-slip change just returns it to its usual status quo ante. As I noted a month ago, blue slips have been advisory-only for most of their century-long history. Only for two significant periods has the blue slip served as a one-person stealth filibuster, and technically doesn’t work that way now. According to the rules since 2003, it takes both home-state senators withholding their blue slips to stop a hearing and confirmation, which should have already cleared the path for [Minnesota's David] Stras. Ryan Bounds, on the other hand, has been blocked by both Oregon senators, who claim that Trump didn’t consult with them on the choice.

Fourth, prioritizing the confirmation of judges over lesser executive officials is a no-brainer. Judges serve for life, and will help shape American jurisprudence for decades; Deputy Secretaries of the Interior may be important, but McConnell has his eye on the ball here.  Now it's time for the White House, Senate Judiciary Committee Chairman Chuck Grassley, and McConnell to kick the confirmation conga line into overdrive.  Nominees who are potentially unfit or unqualified should not be rubber-stamped, but nominees whose opposition is rooted in ideological objections from the Left should sail through.  There's a lot of work to be done.

Even more can be accomplished if Republicans hold, or even expand, their upper chamber majority next fall.  On that front, the GOP received welcome news this week when a prized recruit to run against hyper-vulnerable liberal Claire McCaskill in Missouri formally declared that he's jumping into the race.  That's a real pick-up opportunity, as is the contest in Indiana, where Democrat Joe Donnelley is trying to suck up to President Trump regarding an issue on which he's been caught red-handed in breathtaking hypocrisy.  And although not many people have Pennsylvania high on their lists of potential GOP Senate gains, this ABC poll of the state can't be terribly encouraging to Democrats:

That statewide survey has a D+8 sample, in case you were curious.  In the same data set, a majority of Keystone Staters say their Democratic Governor should be replaced.  The 2018 Senate map is so tilted in Republicans' favor that a worst case scenario (though one never knows these days) would look like the party losing seats in Arizona and Nevada, and picking off zero endangered Democrats.  For Chuck Schumer to become majority leader, Democrats would theoretically still need one more pick up.  They're probably praying that Susan Collins takes this plunge, thus opening up her Senate seat, which they'd likely flip:

I'll leave you with this column from National Review's Jim Geraghty, reacting to Steve Bannon's announced plans to challenge nearly every Republican Senate incumbent.  Geraghty's takeaway: "Trump doesn't need different GOP Senators.  He needs more of them."  Correct.