Senate Majority Leader Mitch McConnell joined me this morning:
HH: I am joined now by the leader of the United States Senate, Mitch McConnell, senator from Kentucky. About three hours from now, Judge Gorsuch will be voted Justice Gorsuch on the United States Supreme Court thanks to the efforts of Leader McConnell that stretch back over a year. I just want to personally thank you for that, Leader McConnell. As an originalist, I don’t think people quite grasp what you’ve done here, and how far out on a ledge you went to save the originalist approach to the Constitution, and I am very grateful for that.
MM: Well, I want to thank you, Hugh. I mean, you were the first one last year who said McConnell’s doing the right thing by leaving this vacancy there so the next president can make the selection. And you were consistently supportive. And as you know, it was a bit of a rough ride, even though everybody knew that if the shoe had been on the other foot, and we’d had a Republican president and a Democratic Senate in the middle of a presidential election year, they wouldn’t have filled it, either. But that didn’t keep them from complaining widely and loudly. And I was deeply appreciative of your support of that decision I made from the very beginning.
HH: Well, we’ll come back to Judge, soon-to-be Justice Gorsuch in a second, but I have to get your reaction to the overnight attack ordered by President Trump upon the Syrian airbase. I haven’t seen your official reaction anywhere in print. What do you make of that use of American power?
MM: It was perfectly executed and for the right purpose. I support totally what the President did, a precision strike to make it clear to Assad that the use of chemical weapons is unacceptable behavior. This step, of course, will be widely applauded by all of our allies, particularly our Sunni Arab allies in the Middle East who really wondered whether America could be depended upon again after eight years of Barack Obama.
HH: Now Senator, some of your colleagues on both sides of the aisle have been critical that the President did not seek Congressional authority beforehand. I disagree with them on the Constitutional necessity of doing so in this circumstance. What say you?
MM: Yeah, I do, too. I do, too. I think that this is not a situation that requires an AUMF, authorization for the use of military force. We passed one back in 2001 and 2002, I believe, and the previous president thought that it authorized what we were doing in that part of the world, and I expect this president thinks the same.
HH: Now I want to return to Judge, soon-to-be Justice Gorsuch. I believe he will be confirmed in about three hours. And before we talk about procedure, can we ask you just for a few words of your estimate of this, I think, quite estimable jurist?
MM: Well, I think the President is to be applauded by picking, by all estimations, the most outstanding circuit judge in the country. It certainly made my job easier in convincing my colleagues that this is a situation in which regretfully we had to change the rules and do what the Democrats had done in 2013 for every executive branch appointment except the Supreme Court. Obviously, the quality of the nominee was very helpful in getting my members to the decision that we ultimately had to make, because what we were seeing on the other side, Hugh, was the first partisan filibuster, successful, by the way, of a Supreme Court nominee in history. Never been done before. No Republican member of the Senate has ever even filibustered, much less successfully filibustered a Supreme Court nominee. So what they were doing was quite over the top, if you will, and we responded accordingly.
HH: Will all future Supreme Court nominees, provided they clear the Judiciary Committee, be subject to up or down votes on the floor now as a consequence of yesterday, Leader McConnell?
MM: That’s correct. All executive branch appointments will be, and let me just say, this is the way the country operated down to 2000. Even though it was possible to filibuster cabinet appointments and judges, it was just never done. And the best evidence of that was the very controversial Clarence Thomas nomination back in 1991. Just for your listeners’ understanding, it only takes one of a hundred senators to make us get 60 votes, just one. Clarence Thomas was approved 52-48, the most controversial Supreme Court nominee in history. And yet not a single member of the Senate, even though 48 members were opposed to him, required us to get 60 votes. So this is a fairly recent invention, ironically, by the current Democratic leader of the Senate who convinced his Democratic colleagues when Bush 43 got elected that they ought to use every rule they could to keep Bush 43 from putting conservatives on the courts. And that led to this last decade of back and forth, all as a result of this new practice that Chuck Schumer started. And I think it’s ironic that he get to preside over the end of it. We go back to where we were prior to the Bush election in 2000.
HH: One more unusual practice of the Senate remains, Leader McConnell. It’s not a rule, it’s a practice, the blue slip rule on which senators either return or don’t return so-called blue slips on nominees from their home states. And I gather it’s been honored in the breach sometimes. Do you think that their obstructionism will now extend to the blue slip rule, Democrat obstructionism, and if so, will you urge Chairman Grassley to ignore the non-return of blue slips?
MM: Well, that’s an interesting question. It’s actually not a rule of the committee or the Senate. It’s a practice of previous Judiciary Committee chairmen. And you’re right. If the Democrats wanted to carry this further, I suppose not returning the blue slip, that is not okaying judges from their home state, would be a device that they could use. We’ll have to stay tuned and see if that in fact becomes the case.
HH: All right, now I want to ask about your colleague, Chuck Schumer, with whom you’ve worked often, and occasionally collegially. What was he thinking here, because from the beginning, this was a play, the ending of which we knew? And I don’t know how it could possibly have helped his hand for the next vacancy.
MM: Hugh, I think the only explanation is our Democratic colleagues are running from their base. They’re literally frightened to death of the anger on the left precipitated by the election of Donald Trump. And these people are saying resist everything. And obviously, it even got to the Democratic leader. You may or may not have noticed he even voted against my wife for Secretary of Transportation…
MM: …a pretty non-controversial choice. So that clearly was a play to the base, you know, resist everything, and we’ve seen that on full display here the first three months of this administration. I hope it’ll settle down. Given the way the Senate operates, the minority is almost never irrelevant. There has to be at least some bipartisan cooperation to make the Senate work. Maybe after we get back after the Easter recess, which starts later today, we’ll be in a more cooperative frame of mind.
HH: Leader McConnell, I wrote a piece for the Post a couple of months ago about repairing the rights of the minority when it comes to judicial nominees that would require, I thought, first confession and then reparation of what happened in 2013, which was the packing of the D.C. Circuit. Have you seen any indication that your colleagues across the aisle wish to return to collegiality on judges so that the most extreme of nominees are in fact not confirmed by partisan votes? But that would require unpacking the D.C. Circuit, the second-most important court in the country.
MM: Yeah, I can’t imagine that would happen. And each, you know, their idea of extreme is quite different from ours. For example, they consider Ruth Bader Ginsberg mainstream. Well, people may not remember, before she went on the Court, said we ought to abolish Mother’s Day. Now most of us would not consider those mainstream views. They believe someone like Neil Gorsuch is outside the mainstream. So we have a very different view of what the mainstream is. I’m not worried about extreme nominees of the right or the left. Most members of the Supreme Court have been extremely well-credentialed, no matter which president appointed them. So I’m not worried about a kind of deteriorating quality on the courts as a result of having a simple up or down vote, because Hugh, that’s the way it was for 230 years prior to Bush 43. And we’ve had a lot of great judges.
HH: Now I want to go back now for the purposes of historical accuracy to an October 24th, 2016 interview given by Harry Reid, Chuck Schumer’s predecessor, to Talking Points Memo, a left wing site, very left wing site, to the reporter, Lauren Fox. Senator, then-minority leader Reid, said, and I quote, “’Ireally do believe that I have set the Senate so that when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore, and it’s clear to me that if Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I have told them how, and I’ve done it. I’m not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again,’ Reid told TPM in a wide-ranging interview about his time in the Senate and his legacy. ‘I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It only takes a simple majority anymore, and it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told them how, and I’ve done it, not just talking about it, I did it in changing the rules. It’ll have to be done again,’ Reid told TPM.” It really is the Reid Rule, isn’t it, Senator McConnell?
MM: Yeah, I mean, I would agree with what Harry said, and I didn’t agree with him often. And it was also made clear by Tim Kaine, who was running for vice president with Hillary Clinton, that that’s what they fully intended to do, because they assumed they’d have the majority in the Senate, they’d have the White House, and we’d be in the minority and resisting a Supreme Court appointment. So look, this was going to happen. They just didn’t think it was going to happen the way it did.
HH: There are, are there any reasons to believe another retirement is forthcoming, in your view, Leader McConnell, at the end of this session of the Court?
MM: I don’t know. I don’t know. You know, a number of justices are either late 70s or in the 80s. And we’ll see, but it’s clear now that the path is forward for us to get back to the way we operated for 230 years down to Schumer invented the business of filibustering judges during Bush 43. Whoever is nominated will be confirmed by the majority vote.
HH: There are many overwrought declarations on everything right now, not just judges. But everyone seems to be going to the highest level of despair and public wailing. Is this going to settle down so that the country can be governed again?
MM: I hope so. I think what the President did with the strike in Syria, ironically, is going to be reassuring to an awful lot of people, both here at home and around the world, that America is back in terms of being the world’s leader. And I think the President did himself a lot of good by making the point that you don’t use chemical weapons and not expect anything to happen from the United States. And so that’s a first step. I think the President made an outstanding appointment, obviously, in Neil Gorsuch. I think things are going to settle down, Hugh, because they need to. This is a big country with a lot of different points of view, and people come to the Congress from all over the country with different ideas about what we ought to do, and the American people expect us to work out our differences and make progress for the country. And I think we’ll be able to do that.
HH: I have referred to it as a Grenada moment, not because the island nation of Grenada is like Syria, but because it’s a moment in time when America changes course, as President Reagan did with the invasion of Grenada. Do you think it’s that kind of a moment, the Syria bombardment?
MM: Yeah, I don’t know that it necessarily settles things in Syria, but it’s a huge message to countries like North Korea and Iran and Russia that the era of American passivity is over. And so I think it was a very, very important step, and as you suggest, maybe akin to what Reagan did to Qaddafi back in ’86. And I think it was an image maker for the President, but also very much the right thing to do.
HH: And now let me talk about the imminent shutdown of the government. If it happens, will the Democrats bear the blame that the Republicans blamed the last time the government was shut down by the minority party?
MM: Well, generally, the Congress gets the blame, not the President, but look, we’re not going to do that. I’ve talked to Schumer. Schumer’s in negotiations with the White House, which is important, because we’ll need Democratic votes to pass the government funding bill when we get back. And I’m optimistic that’s not going to happen.
HH: I’m so glad to hear that. Now the 350 ship Navy the President promised is not evident in the Defense budget that was sent up by Director Mulvaney. Do you believe we’re going to get to that Navy, Leader McConnell, because we need it as was demonstrated in the Mediterranean and Syria today?
MM: I hope so. It’ll take a while, but I hope so.
HH: And the Senate Intelligence Committee, I want to conclude by talking about this, I thought perhaps the only bipartisan moment in the last 18 months was the Warner-Burr press conference. And I thought it was a great press conference. Do you have confidence in the Senate Intelligence Committee’s ability to dig into and understand what has happened with the Russian intervention with our election?
MM: I asked the Intelligence Committee to undertake this. Richard Burr, the chairman and Mark Warner, the ranking Democrat, are going forward on a bipartisan basis. That’s the one entity in town I think you can count on to get to the bottom of this and issue a report. They’re not a law enforcement agency. It’s also important to remember the FBI’s announced they have a criminal investigation as well. So in spite of all the talk about other committees and their differences, I think the American people can count on the Senate Intelligence Committee to do an objective, bipartisan job, find out what happened, and issue a report.
HH: I have two final questions, Leader McConnell. Are you concerned with the reports of the unmasking in the last year of the Obama administration? And will you ask to see those raw logs that others have already seen?
MM: I think that’ll all be part of the Senate Intel investigation which will be pretty wide-ranging.
HH: And then the last question, I know it’s not the place for Article I leaders to tell Article II leaders how to run their shops, but do you see any evolutions taking place within President Trump’s White House that you either welcome or which alarm you?
MM: Well, I’ve been quite public, and I’m not a great fan of the President’s tweeting. I think we ought to concentrate on the things that the President’s doing, the deregulatory efforts, the tax reform that we’re moving forward on. I’m not a great fan of his tweeting. I said that to him on a number of occasions. You can tell how successful I’ve been in discouraging him from doing that.
HH: (laughing) Well, Leader McConnell, congratulations on today. I think you’re three hours away from keeping the Constitution intact, and so thank you for all your efforts, and good luck today.
MM: Thanks a lot, Hugh.
End of interview.