Sen. Mitch McConnell

  • February 17, 2016
    Guest Post

    by William Marshall, the William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law; Marshall is also a member of the ACS Board of Directors.

    I understand that some have vehemently criticized Senator McConnell for proclaiming that “[t]he American people‎ should have a voice in the selection of their next Supreme Court Justice.” But Senator McConnell is right. The American people should have a voice in the selection of Supreme Court justices. And, as long as we are on the subject, we might also note that the American people should have a voice in the selection of judges appointed to the lower courts.

    The problem is that Senator McConnell has apparently forgotten that the American people have already exercised this right. In 2012, they elected Barack Obama President of the United States. This means that the American people have already voiced their decision that Barack Obama, under Article II § 2 of the United States Constitution should, among his other duties and obligations, “nominate Judges of the supreme Court.”

    It is really that simple. So simple, in fact, that John Adams, the second president of the United States, saw no problem in appointing John Marshall to be the Chief Justice of the Supreme Court even after Thomas Jefferson defeated Adams in the election of 1800. So simple that the United States Senate in 1801 confirmed Adams’ nominee event though Jefferson was only weeks away from assuming office. So simple that in 2016, no presidential candidate from either party has even remotely suggested that he or she would not nominate a candidate to the Supreme Court if a vacancy arose during his or her last year in office. (Where else has there been such unanimity in this race?)

    The contrary conclusion that a president should abrogate his duty to appoint judges at the end of his term simply cannot be squared with the Constitution. Article II sets the term of the presidency at four years; not three years, not three years and a quarter, and not three years and one half. The Twenty-Second Amendment to the Constitution imposes a two-term limit on the presidency – it does not impose a mid-term limit. Neither Article II nor Amendment XXII (or for that matter any other constitutional provision) suggests or implies that some presidential powers should be exercised until the president’s last day in office while others should be abandoned months or years before.

    Few constitutional questions are this easy. The president appoints Supreme Court justices, and the Senate provides advice and consent. Both should start doing their jobs.

  • April 24, 2015

    by Caroline Cox

    The U.S. Senate made another judicial confirmation on Monday. In a vote of 91-0, the Senate confirmed the nomination of George C. Hanks, Jr. to be a United States District Judge for the Southern District of Texas. Additionally, in unanimous voice votes, the Senate Judiciary Committee voted out two more nominees.  Kara Stoll, nominated to be a United States Circuit Judge for the Federal Circuit, and Roseann A. Ketchmark, to be a United States District Judge for the Western District of Missouri, were both voted out of committee. 

    Overall, the Senate continues to delay on confirming nominees. Republican leadership has refused to accept responsibility for the judicial vacancies. Texas, for example, has ten current vacancies according to the Alliance for Justice. Senate Republicans have done little to alleviate this pressing problem, and have they failed to accept their part in creating judicial emergencies. 

    U.S. Senator Chuck Grassley announced that he will recommend two Iowans for District Court vacancies this week, and it looks as though he will move quickly to move the nominees through the process. The Des Moines Register argues that the senator should apply this same sense of urgency to other nominees.

    Senator Mitch McConnell may be slowing down judicial nominations as means of getting back at Democrats for previous filibuster reforms. But as ACS President Caroline Fredrickson points out in a recent article at Talking Points Memo by Sahil Kapur, these delays may offer an opportunity for progressives to mobilize their base.

    After the confirmation of Loretta Lynch, the Senate now needs to consider Sally Yates to be Deputy Attorney General. Senator Patrick Leahy issued a statement on the nomination and the importance of moving more quickly on judicial nominations.

    There are currently 53 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • October 9, 2013
    Guest Post

    by Adam Lioz. Mr. Lioz is a lawyer and policy advocate who joined the Demos Democracy Program in November 2011. He focuses on litigation to enforce the National Voter Registration Act and end prison-based gerrymandering; and policy advocacy to promote political equality and democratic fairness through safeguarding the right to vote and curbing the influence of big money on the political process.

    Yesterday, in spite of official Washington being on lockdown, the Supreme Court heard oral argument on McCutcheon v. FEC – a case many are referring to as “Citizens United II.”

    The case is a challenge to the total cap on the amount that one wealthy donor can give to all federal candidates, parties, and PACs, known as “aggregate contribution limits.” 

    An Alabama coal industry executive named Shaun McCutcheon (joined by the RNC) thinks that the current $123,200 cap – more than twice what an average family makes in a year – is a burdensome restriction on his political participation.  So, he’s asking the Court to lift the cap, freeing him to kick in more than $3.5 million to Republican candidates and party committees.

    Senator Mitch McConnell, who proudly embraces his reputation as the “Darth Vader of campaign finance reform,” has asked the justices to go further by overturning key parts of the Court’s seminal campaign finance case and striking all contribution limits, including the cap on the amount an individual can give directly to any one candidate (currently $5,200 per election cycle). 

    What’s at stake in the case?  New research from Demos and U.S. PIRG projects that striking aggregate limits would bring more than $1 billion in additional “McCutcheon Money” through the 2020 election cycle, from just slightly more than 1,500 elite donors. 

    This is not a sea change in overall election spending, and much of this money may be shifted from Super PACs to candidates and parties. But, it will continue to shift the balance of power from average citizens to a tiny minority of wealthy donors. And, who are these wealthy donors?  In a nutshell, they don’t look like the rest of the country, but rather are avatars of what Public Campaign calls “Country Club Politics.”

  • July 11, 2013

    by Jeremy Leaming

    Sen. Majority Leader Harry Reid (D-Nev.) may be nearing a vote to alter procedures around the filibuster, which Senate Republicans have used over and over again to kill consideration of major legislation and seriously delay or scuttle President Obama’s nominations to the federal bench and to executive branch openings. For that matter, as former Labor Secretary Robert Reich recently wrote the Senate Republicans “have filibustered almost everything, betting that voters will blame Democrats for the dysfunction in the Congress as much as they blame the GOP.”

    Reid, according to The New York Times is considering asking his Democratic peers in the Senate to vote to “take the exceptional step of barring the minority party from filibustering presidential appointees.” The report continues, however, that such action would not “affect filibusters of legislation or judicial nominees.” At the moment there are still more than 80 vacancies on the federal bench. The vacancies have hovered at 80 or above for years now. (See JudicialNominations.org for more information about the vacancies.)  

    Yesterday, during a Senate Judiciary Committee hearing, Republicans signaled they were preparing to delay or block President’s Obama’s nominees to the U.S. Court of appeals for the District of Columbia Circuit.

    Earlier this year Reid, after threatening a similar action on the filibuster, instead entered into an agreement with Minority Leader Mitch McConnell (R-Ky.) that has been widely panned as ineffective.

    Reid, from the Senate floor, blasted McConnell for failing to adhere to the modest agreement. “Exactly three weeks after Senator McConnell committed to process nominees consistent with the norms and traditions of the Senate, he led Republicans in an unprecedented filibuster of a highly qualified nominee for Secretary of Defense,” Reid said. “Nothing could be a starker violation of a commitment to return to the norms and traditions of the Senate than launching the first-ever filibuster of a Secretary of Defense.”

    Reid ticked off other executive branch and federal agency positions that Republicans are stalling or threatening to block, such as nominations to the National Labor Relations Board (NLRB), the Consumer Financial Protection Bureau, the Environmental Protection Agency and the Department of Labor.

  • July 2, 2013

    by Jeremy Leaming

    Senate Republicans’ agenda of delaying or scuttling judicial nominations has had a particularly corrosive impact on the U.S. District Courts where there are currently 65 vacancies. A July 2 report from the Brennan Center for Justice reveals the large number of vacancies has stayed consistent for five consecutive years for the first time in 20 years.

    Brennan Center Counsel Alicia Bannon in a statement about the report said, “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The president and the Senate must find a way to fill these crucial seats. The report, authored by Bannon, also finds that “average caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.”

    The larger caseloads are hampering the ability of district courts nationwide to dispense justice, but are having, the report says, an even greater burden on districts where judicial emergencies exist. “Analysis shows that judicial emergencies – a designation of districts with an acute need for judges – have been higher in 2010-2012 than at any other point since 2002,” the Brennan Center notes.

    The report cites several factors that “likely account for the unusually high and sustained level of district court vacancies since 2009. District courts experienced an atypically large number of retirements during the first three years of the Obama presidency, leading to a surge in the number open seats, while at the same time, fewer total district court nominees were confirmed during President Obama’s first term than in other recent administrations. Nominees also faced record wait times from nomination to confirmation in the Senate as compared to other recent administrations, and the President trailed his predecessors with respect to the number of judges nominated during his first three years in office. Finally, many home state senators have been slow to recommend nominees to the President, particularly in states with two Republican senators, which has delayed the process of identifying the nominees.”

    Other reports have shown that Obama has long since picked up the pace of putting forth nominees, but Senate Republicans have not altered their agenda of obstruction. Republicans led by Sen. Mitch McConnell (R-Ky.) have not only continued to slow-walk the president’s judicial nominations, they are holding up his nominations to the Environmental Protection Agency, the Department of Labor, the Consumer Financial Protection Bureau, and nominations to the five-member National Labor Relations Board. Sen. Chuck Grassley (R-Iowa) has even pushed a measure to cut the number of judgeships on the powerful U.S. Court of Appeals for the District of Columbia Circuit.