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GOP Leader Mitch McConnell on the Liu Filibuster and the Obama NLRB’s Attack On Boeing

Thursday, May 19, 2011  |  posted by Hugh Hewitt

The GOP Senate Leader joins me today to talk about the successful filibuster of Obama 9th Circuit nominee Goodwin Liu and the prospects for reform of the Senate’s filibuster rules. I will also talk with him about Team Obama’s assault on jobs in South Carolina via the NLRB’s outrageous attack on Boeing.’s new plant in that state. The transcript of our conversation is below.

HH: Pleased to welcome back the leader of the GOP in the United States Senate, Senator Mitch McConnell. Leader McConnell, welcome back, good to have you.

MM: Hey, glad to be with you.

HH: It appears that the 9th Circuit nominee, Jack Liu, won’t be getting an up or down vote on the floor of the Senate anytime soon. Why has that happened?

MM: Well, he was defeated on the effort to do what we call in the Senate invoke cloture, that is end debate. He was defeated, and I’m sure the nomination will be withdrawn. Only one Republican voted in favor of giving this nominee a vote. So I think the reason for it is quite clear. He had the view that it’s perfectly permissible, and even desirable for judges to kind of make it up as they go, in other words, to act as legislators. It probably didn’t help him any that he testified against both Chief Justice Roberts and Justice Alito, and used some rather strident language in describing both of them. But I think the core reason he was denied a vote, and therefore defeated, was because he seemed to be uninterested in what the Constitution, or even the case law, might require a judge to do, and really, pretty openly, said he believed in judges ought to do whatever they think is the right thing to do. [# More #]

HH: Now Leader McConnell, a lot of scholars, including Ken Starr, president of Baylor, former solicitor general and D.C. Circuit judge, weighed in on behalf of Professor Liu. Was it a close call in the minds of many of the Senators in your caucus? Or was this an easy one for them to invoke filibuster on?

MM: Well, Republicans…hey, you know, in the early part of the previous decade, argued very strenuously against filibustering judges. But frankly, we lost that battle. They filibustered Miguel Estrada, an extremely well-qualified nominee of President Bush’s seven times, and hung up a huge number of his judges. And I think it just dawned on a bunch of us that that battle had been lost, and clearly, the Senate would now filibuster a judge when it deemed the judge objectionable. And so all we did today was simply follow the new norm in the Senate, and I’m pleased that with one exception, every single Republican voted against giving Mr. Liu a vote.

HH: And not just Miguel Estrada, but William Myers, Henry Saad and others. My question, Leader McConnell, is does this open the door for some kind of an amendment of the Senate rules so that all judicial nominees, both Republican and Democrats, are guaranteed up or down votes if they get out of committee? Is there a chance here to go back, because I’m one of those critics of the extra-Constitutional standard. At the same time, I don’t believe the Republicans can roll over and allow their judges to be filibustered and not pay back when the Democrats come along. Is there a chance now to perhaps reopen that and get a rule that guarantees nominees an up or down?

MM: No, I don’t think so. I think we’ve moved on, and it’s interesting to note who would not have been on the Supreme Court if this had been the norm as recently as twenty years ago. Justice Clarence Thomas, who has been an outstanding Supreme Court judge, in my view, was confirmed only 52-48. And what that meant is not a single member of the Senate, even though 48 Senators were against Clarence Thomas, insisted on having a limitation on debate, in other words, insisted on having a cloture vote to shut down a filibuster. In fact, there was no filibuster. But the Senate, at various points in its history, has had different views over our two hundred years about how the confirmation process should be handled, and I think now it’s very clear that the filibuster will be employed from time to time when a nominee is extraordinarily unfit for the bench, and that’s what happened today.

HH: So if Senator Reid approached you and said Senator McConnell, let’s sit down and fix this, because extraordinary circumstances, that’s the standard in the Gang of 14, I don’t know if the standard you’re applying, it’s so malleable, it’s so subject to abuse, let’s get it fixed, you don’t think that could go anywhere right now?

MM: No, I don’t think so. I think the Senate has sort of settled into a new norm here, which is that hopefully filibusters won’t become a routine as they were ten years ago for President Bush, but they will be used from time to time by the minority, the current minority being Republicans, when we think it is appropriate.

HH: Are there any other nominees out there right now, Leader McConnell, that you think ought to be figuring on a filibuster in their future?

MM: You know, I can’t answer that. I haven’t looked at the remaining nominees in committee. We usually take our first cue by what happens inside the committee. And there was not a single Republican on the Judiciary Committee that voted to report out Goodwin Liu when he came out of committee, so that was an early indication that there was broad opposition to that nomination.

HH: Senator, while I have you, I want to ask you about Boeing and their plant in South Carolina, and the NLRB’s attack on it. Has this gotten on your radar? And what does the caucus think about this?

MM: Unbelievable, isn’t it? The federal government is now, through the NLRB, going to tell you where you can locate your plant. You know, a lot of these big, global businesses, their response to that might be well, I’ll locate my plant in Mexico. I mean, I think that this is truly outrageous. This is the same administration who has now tried to introduce politics into the procurement process by making people who do business with the government reveal their political support for candidates. This is a Chicago-style thuggish administration. In other words, agree with us, or we’ll find a way to punish you.

HH: Have any of your colleagues across the aisle privately said to you we’ve got to stop this Boeing nonsense, people are losing jobs in South Carolina?

MM: I think there are 11 Democratic Senators in right to work states. And I’ve not heard from them yet, but this issue is just starting. One of my colleagues told me earlier today that the NLRB, either in its initial order, or in some utterance since then, basically said in order to, (laughing) you need to build ten more planes in Seattle. Now does this mean the government’s now going to tell you not only where you can be, but how many of your products you can make?

HH: Sounds like it. Quick update on the debt ceiling negotiations? Are they moving forward?

MM: Yeah, they are. We had the President at the table. Nobody’s anxious to vote to raise the debt ceiling, but I think the only way the President has any chance at all of getting that done is to convince myself and plenty of my colleagues that we’re about to do something really important about the debt. I mean, everybody understands the problem, our debt now $14 trillion dollars is the size of our economy, which makes us look a lot like Greece. We’ve got over $50 trillion dollars in unfunded liabilities, popular programs that people like, like Medicare and Social Security, and Medicaid programs that we can’t pay for. Standard & Poor’s, the famous rating agency, is in the process of downgrading the U.S’ credit rating. The time to act is now, and the debt ceiling is the occasion upon which hopefully, we can do something significant to reduce spending in this country, because that’s the problem. We’ve been spending too much. The problem is not that we tax too little.

HH: Last question, Senator, you follow Kentucky basketball a little bit. The Cavaliers have got number one and four. Enes Kantor played there for a cup of coffee. How do you think he looks in the wine and the gold in Cleveland?

MM: Well, you know, Kentucky’s sorry they didn’t get him. And so he went straight into the pros, I gather.

HH: He’s in Turkey. He played a couple of games there, I believe. But Senator, good to talk to you again, look forward to catching up with you again soon.

End of interview.


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