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Hugh Hewitt Book Club

Senate Majority Leader Mitch McConnell On The Federal Judiciary And The Pace Of Appoinments

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I was joined this morning by Senate Majority Leader Mitch McConnell:




HH: Joined now by the leader of the United States Senate, Mitch McConnell. Senator McConnell, good morning to you, thanks for joining me.

MM: Good morning. Glad to be with you, Hugh.

HH: Now I’m wondering if you were disappointed Lamar Alexander fell to 32 in the draft, and Baker Mayfield went number one to Cleveland?

MM: I was. You know, I think, obviously I’m a big Lamar Jackson fan, and I think your hapless Browns could have used him.

HH: (laughing) I said Lamar Alexander. Lamar Jackson. Yeah, the Louisville quarterback went to the Ravens. Does that make you a Ravens fan now, Mr. Leader?

MM: It probably does. You know, you mentioned Lamar Alexander. I call him my second favorite Lamar, right behind Lamar Jackson.

HH: That’s so funny. Well first, let’s stay focused on the work of the Senate. I’ve been talking about Rudy and everything else all day. I want to stay on the Senate. First of all, congratulations on getting Secretary of State Pompeo and Ambassador Grenell confirmed. I’m going to Grenell’s swearing in today. Do you expect to get CIA Director-Designate Haspel confirmed when the Senate returns?

MM: I do. You know, she’s not only going to be the first woman CIA director, which I think is not insignificant, particularly in a field like that. But she’s probably, not probably, certainly the most qualified nominee any president’s ever made for that particular job. I think she’s an outstanding choice. It’s interesting that she’s supported by all the former CIA directors that we can find, including the CIA director under President Obama, who has been aggressively in her corner. And I think that tells you something.

HH: Now I want to switch to judges. It’s my pet issue, and you have been spectacular on this. Do you expect a retirement from the Court this summer, Mr. Leader?

MM: I really don’t know, but you know, I’m grateful that you’ve had an interest in this, because I think as you’ve told your listeners from time to time, this is my top priority in the Senate. Of course, I love the tax bill. I think the tax bill will make an important difference to the country. But when the winds, the political winds shift, we never taxes alone. When we did comprehensive tax reform 30 years ago, it lasted four years. What I want to do is make a lasting contribution to the country. And by appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s, I believe working in conjunction with the administration, we’re making a generational change in our country that will be repeated over and over and over down through the years.

HH: Let me give the scorecard for the audience. Thus far under President Trump, 15 Appeals Court judges have been confirmed. An additional 12 have been nominated, and three are almost nominated. 17 district court judges have been confirmed. 58 are nominated. Five more are pending. Now compare that with overall, Bill Clinton in two terms, 62 Appeals Court judges. W. had 61. President Obama had 49. But President Trump already has 15 with six more in the hopper, and indeed, in W.’s two years, he only had 17 confirmations, one of which was a Democrat, by the way. He didn’t get another one until March of 2003. How many do you expect on the federal Appeals Court to get confirmed by your break for the elections, Leader McConnell?

MM: Well, we’re going to continue to confirm judges all year. You know, the Congress doesn’t stop with the elections. It goes until the end of the year. We’re going to do six more next week, which will bring us to 21. I’m processing them as quickly as they come out of the Judiciary Committee, and the administration’s sending them up rapidly. I don’t know what the final number is, but my goal, Hugh, is to confirm all the circuit and district court judges that come out of committee this calendar year. All of them.

HH: Now that would be a huge change in the judiciary, and I want to run down the circuits also for my audience. Right now in the 1st Circuit, there are two Republican judges, four Dems. On the 2nd, four Republicans, seven Dems. On the 3rd, five Republicans, seven Dems. On the 4th, four Republicans and 10 Dems. The 4th is really a liberal circuit. Reverse that on the 5th – 10 Republicans, 5 Dems. On the 6th, 11 Republicans, 5 Dems. On the 7th, 6 Republicans, 2 Dems, 3 vacancies. On the 8th, 10 Republicans, 1 Dem. That’s a great circuit for us to bring cases in. On the 9th, though, it’s 16 Democrats and 6 Republicans. I’ll come back to that. On the 10th, 4 Republicans, 7 Democrats. On the 11th, 5 Republicans, 7 Democrats. And on the D.C. Circuit, 4 Republicans, 7 Democrats. Now that makes the 9th Circuit the most imbalanced circuit, Mr. Leader. And I want to talk to you…

MM: And it has been for years.

HH: Now there are seven vacancies there, but are we ever going to get any judges because of the blue slip rule?

MM: Well, you know, we don’t have a blue slip rule the way we used to for circuit judges. Senator Grassley basically agreed with my recommendation that a blue slip for a circuit judge, and for your listeners, this is an opportunity to veto, kind of like a blackball, for circuit judges is just simply a notification of how you’re going to vote, not an opportunity to prevent the whole Senate from voting on a circuit judge. We still honor the blue slip at the district court level, but not at the circuit court level. The ranking Democrat on the committee happens to be from California, Dianne Feinstein. And Senator Grassley’s going to have to work that out. He’s the chairman of the committee. But my view is no one senator ought to be able to stop a circuit court judge. The full Senate ought to be able to consider them, and I hope these nominees will come out of the 9th Circuit. I don’t know how many of those are sort of considered California judges, but I hope they will come out. If they are, I’ll call them up on the floor of the Senate.

HH: There are 18 vacancies, and 15 don’t have nominees, yet. There are three who are in the process that apparently tipped. So if those 18 are all put before you by July 1, nominated, do you think they all get votes by the end of the year, Leader McConnell?

MM: Absolutely, yeah. Look, I don’t consider the Congress ending until December 31st. I can only deal with a nomination once it comes out of committee. All the judges that come out of the committee, my goal is, to confirm them this year. And Hugh, if I may look forward, if we can hold the Senate this fall, given the spectacular job President Trump and his team have done of picking judges, we can do this for two more years, so that through the full four years of President Trump’s term, he will make a lasting generational contribution to the country, having strict constructionists on the court. And I know you’ve talked to your audience about what we mean when we say strict constructionists. We mean, as Justice Scalia once said, judges who will occasionally be disappointed in the decision they make because it’s required by the law or the Constitution, in other words, people who don’t try to just get the result they want no matter what the law is.

HH: Justice Gorsuch disappointed some conservatives last week with the decision, but I wasn’t disappointed with it. It was his understanding of the law and of the vagueness that the Senate had and the Congress had put forward in deportation matters. Let me run down these names – Amul Thapar, John Bush, Kevin Newsome, Ralph Erickson, Amy Barrett, Joan Larson, Allison Eid, Stephanos Bibas, Gregory Katsas, Steven Grasz, Don Willett, James Ho, David Stras, Elizabeth Branch and Kyle Duncan. Those are the 15 you’ve confirmed, every one of them an originalist, Mr. Leader. Not one of them a squishy, we don’t know really what they think.

MM: Yeah, and that’s why I say the administration is doing a terrific job. And we’re, as I said, it’s my top priority. So as soon as they come out of committee, if I have a choice between taking up a particular bill or taking up a circuit court judge, I take up a circuit court judge, because I think it makes it the longest lasting contribution to make in this the kind of country it ought to be.

HH: So if a justice retires at the end of June/early July, what happens to your nomination conveyor belt? Does it throw everything into disarray?

MM: Well, we’re just going to work a little harder, and process the Supreme Court nomination if we were to have one, and the others as well.

HH: Would that come first? Would that go to the front of the line?

MM: It would go to the front of the line. No question about it. If there is a Supreme Court vacancy, it takes priority. No question about it.

HH: Even though your majority is down to one, and Senator McCain’s recovery is proceeding apace, and he’s in Arizona, though, so he’s not back here, so you’re actually operating at 50-49 right now instead of 51-49, is there any way that Democrats could delay a Supreme Court nominee should, for example, Justice Kennedy decided to step down to preserve his Commerce Clause jurisprudence, his 1st Amendment jurisprudence?

MM: No, not if 50 senators are prepared to vote. There’s no way to stop that. And I must say, even though we only have 50, we’ve had good unity on the judicial appointments. Kyle Duncan was somewhat controversial, the last one you mentioned. Several of these others have been block voted against by the Democrats, straight party line votes. Last year, we only had 52. This year, we’re down to 50 with Senator McCain out. But we’ve confirmed them all. Not a single one’s been defeated. We’ve had good unity on our side on circuit judges.

HH: have you talked with Don McGahn, who is the President’s point person on this, about these 18 vacancies, because it’s been a long time. These vacancies have been here for a long time, especially on the 9th Circuit, about when we’re going to get nominees?

MM: I haven’t. I think Don’s done a spectacular job. And I know some states are different from others. He does discuss these nominees with home state senators, including Democrats before the nominations are made. He follows a consultative process in the ongoing hopes that we would have more Democratic support than we’ve had. And I think that takes up some time. But I believe that Don has done the best job of any White House counsel in the time I’ve been in Washington of getting nominations up to the Senate. Frequently, the White House Counsel’s office, in previous administrations of both parties, has been kind of a bottleneck. That’s not been the case under Don McGahn.

HH: Well, I believe if you hold the Senate, that you will actually in one term nominate and confirm as many appeals judges as President Obama did in two terms. I believe that is actually given the age of the federal appellate bench and the rapidity and the smoothness with which it is running that you will match in one term what President Obama did in two terms, because this was not a priority for Harry Reid.

MM: Yeah, it’s sure what I hope, Hugh. It’s a top priority for me. I don’t think there’s anything we can do in the United States Senate that’s more important for America than confirming judges as rapidly as we get them.

HH: But now that brings me to where you and I disagree about one thing, which is blue slips on district court judges. And this is why. It means that the state of California, for as long as the eye can see, will never get a Republican trial court judge again. It just is not going to happen if Senators Harris and Feinstein control, as they do, the district court nominee process. Is that fair to one-tenth of the country that we never get a Republican district court judge again?

MM: Well, you can make that argument, but there are certain, shall I say, boundaries beyond which if I go, we’re going to blow the place up, and you’ve got to have priorities in life. And tackling of the blue slip at the district court level was something I just didn’t think I could get the kind of unity I’ve gotten on the circuit court level. So one step at a time, Hugh. I’m sorry that California’s fallen into the hands of the opposition.

HH: (laughing)

MM: We can’t even get Republicans nominated statewide because of the, this blanket primary rule, or whatever you all call it out there. You end up having Democrats running against each other in statewide elections.

HH: It’s called the jungle primary. Yeah, it’s…

MM: Yeah. It’s a grim picture for Republicans across the board. Judges are only a part of it.

HH: Yeah, but I’m not a litigator, thank God. But if I was, you know, I’ve appeared before the 9th Circuit, and a 2-1 split. Jay Bybee was on my panel, so I won. I managed to persuade Stephen Reinhardt. But at least you’ve broken the thing on the 9th Circuit. But you’re telling me don’t hold my breath for blue slips going away on district courts?

MM: Certainly not in this session of Congress, no.

HH: All right, let’s talk a little bit about your legacy on 1st Amendment issues. You have been a huge proponent of free speech. You were against McCain-Feingold. You succeeded in that in Citizens United. Justice Kennedy agrees with you on that. Now if Justice Kennedy is replaced by a Democrat, does that all fall back, because he’s always been very strong on 1st Amendment issues. But if he’s replaced by a Democrat…

MM: Yeah, Kennedy was terrific on 1st Amendment political speech, an issue that obviously you and I care about. Yeah, I mean, I can’t imagine a Democrat member of the Supreme Court that wouldn’t take the opposite point of view. And I think that would be endangered, you could end up having the government in the business of controlling how much you can say in a campaign, the quantity of a campaign, and then maybe that leads even to the quality of the campaign. We don’t want the government doing that, and that would just be another step backward if a Democratic president makes the next Supreme Court appointment.

HH: Now obviously, your decision to keep the Merrick Garland nomination from coming to a hearing and to indeed hold open the Scalia seat so the people could vote has proven very controversial. I think it’s the greatest thing you’ve done as leader. And I stand by it, 100%. Do you think judges will be as much an issue in these off-term Senate campaigns as they were in the presidential campaign?

MM: I hope so, because I think the American people do care about getting a fair shake when you go to court about having a judge sitting there who’s not trying to get an outcome that he may personally prefer. And I think to have fairness and equity in court, you need the kind of people that President Trump’s been nominating and that we’ve been confirming.

HH: And as you look at the Senate map right now, are you confident of holding the majority?

MM: It’s going to be a challenging year. You know, Bill Clinton lost both the House and Senate two years in. Barack Obama lost the House and almost lost the Senate two years into his administration. History tells you it will not be a great year for the party of the president. We do have, however, I think a good map in the Senate. Only a third of the Senate, thanks to the founding fathers, is up every two years. There are 26 Democratic seats, only 9 Republicans. I’m hopeful we can keep the majority, but I think this is going to be a challenging typical off-year election for the party of the occupant of the White House.

HH: So if you keep confirming judges, last question, even through December 31st, when is the latest a nomination could come forward, in your view, for an appeals court judge that it would be acted on in committee and voted on by this Senate?

MM: Yeah, I’m not sure I can answer that. I don’t have on top of my head how long it’s been from nomination to the floor. But Chairman Grassley’s done an excellent job, in my view, of expediting the process. I’m not sure I can answer that, but I can tell you that if we have to stay until December 31st, we’re going to do the judges that come out of committee. They’ll be voted on this year.

HH: Senator Mitch McConnell, thank you for joining me, and thanks for the focus on the judiciary. Not many people get it, but I do, and it’s much, much appreciated.

MM: Thanks a lot, Hugh.

End of interview.


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