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The Gang of 14’s Legacy: John McCain’s Burden

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Today, soon-to-be Senate Minority Leader Mitch McConnell told the Federalist Society that if “Democrats want our cooperation, they’ll give the president’s judicial nominees an up-or-down vote.”

The AP account terms this a “veiled threat,” even though there is no “veil’ in McConnell’s statement. The forthright priority he is giving the repair of Constitutional process in the nomination and consideration of federal judicial nominations is in fact consistent with his much longer discussion of the importance of the judicial nominations’ issue with me from Wednesday’s program, and very similar to the opinions aired by Senator Coburn -a Judiciary Committee member– on yesterday’s broadcast from D.C., opinions widely shared by most Republican senators and most center-right activists and originalists. (Senator Coburn has some very interesting info on Peter Keisler’s nomination to the D.C. Circuit.)

Early in the week Senator Chuck Schumer was telling reporters that “Judges are the most important,” and that “One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won’t happen.”

Now that’s a “veiled” threat, because it doesn’t forthrightly set out the particulars of the consequences that will follow from the nomination of another SCOTUS candidate like Chief Justice Roberts or Justice Alito. It also categorizes the two new members of SCOTUS as “hard right,” which on the basis of what we have seen to date is just absurd, and an obvious part of Senator Schumer’s continuing and relentless assault on the right of Americans to hold originalist, constitutional majoritarian views on the Constitution and its intended operation. Schumer is a master propagandist, and never lets up in his effort to define the terms in ways favorable to his radical agenda of delegitimizing the historical mainstream of American legal theory. (He is not, however, so funny when trying to be.)

There is no need to rush with Senator Schumer. We will have two years to follow Senator Schumer’s very dangerous and very dishonest assault on the judiciary.

These exchanges on judicial nominees are very important because they underscore why the Gang of 14 is so great a burden upon Senator McCain’s presidential ambitions.

Yesterday, incredibly, Senator McCain was out peddling the spin that the Gang of 14 was a good thing, an accomplishment of which he is proud, and for which the GOP should thank him. In two speeches Thursday, McCain, according to the Washington Post, “defended his participation in the bipartisan ‘Gang of 14’ compromise in the Senate, saying that compromise helped ensure the confirmation of many of Bush’s judicial nominees.”

This is, of course, complete nonsense, and the various statements from Schumer, McConnell and Coburn all serve to underscore the obvious: From the time that Patrick Leahy took the gavel of Judiciary after Jim Jeffords big jump to the time that Senator McCain engineered (not “participated in,” thank you very much, WaPo) the issue of the radical assault on the judicial nomination process by the hard left edge of the Senate Democrats and “the groups” they serve was the central issue of domestic politics.

And because of Senator McCain, the GOP lost the opportunity to win that issue and restore the Constitution’s design.

The demand for “up or down votes on the Senate floor for all judicial nominees” was a central GOP theme of the 2002 and 2004 campaigns, and a very, very powerful one. There was among all three great subgroups of the GOP –the national security conservatives, the free market conservatives, and the faith-based voters– a shared and passionate demand for sound judges committed to originalist approaches in interpretation combined with deference to the legislated judgments of the two coequal branches, all superintended by complete commitment to fundamental rights. Republicans were united in this very crucial part of the political agenda.

Leahy’s abuse of the process motivated everyone in the GOP as it combined an assault on the Constitution with cruelty to honorable, distinguished Americans like Miguel Estrada and Carolyn Kuhl. This issue drove many news cycles and was decisive in many campaigns. It elected Republicans because it was a bedrock issue on which the parties divided sharply and on which the Republicans were absolutely, 100% correct.

Never —never!– in American history had a Senate majority so abused the appellate nominees of a president in his first two years in office. Never —never!– had a Senate minority used the filibuster to block any federal appellate nominee, much less many of them.

Only once in the 20th century had a SCOTUS nominee failed to receive an up-or-down vote, and the circumstances of scandal and the literally “last months'” timing of LBJ’s Administration led to a single refusal of cloture and the face-saving opportunity for Justice Abe Fortas to withdraw his nomination for Chief Justice rather than see it rejected in an up-or-down vote on the Senate’s floor. The record guts the Fortas fiasco of any precedential value, and even a dishonest radical would have to admit there is only one instance in modern times of a SCOTUS nominee who wanted one, not receiving a timely up-or-down vote on the floor of the Senate..

From June of 2001 through April of 2005, the Senate’s Democrats radicalized the nomination process, further dismembering a process already disfigured by their disgusting attacks on Robert Bork and Clarence Thomas, and which had not recovered despite the GOP’s rejection of such tactics during the confirmation hearings of Justice Ginsburg and Justice Breyer.

Finally, in April of 2005, the GOP’s 55 member majority had identified at least 50 from among its numbers to confirm a ruling from the Senate’s Chair that would have delivered on the promise of “up or down votes on the floor of the Senate for all judicial nominees,” by declaring that it was not acceptable under Senate rules to filibuster judicial nominees.

Had such a vote occurred, a crucial part of the constitutional order would have been restored. There would have been political aftershocks, but the vast majority of GOP senators and, crucially, the voters and donors who had elected the 55, were ready to fight for this key principle.

And then Senator McCain threw the principle –and many fine nominees– under the bus. The window dressing for this surrender was the confirmation of some fine judges. But, and this is a key “but.” they would have been confirmed anyway after the vote on the “constitutional option.”

The Gang of 14 did not even work in the term now ending. Many fine nominees who ought to have received votes under the “deal,” didn’t. They may never get them.

And already Schumer and McConnell are back battling each other on the same front lines, and presenting the same arguments. But now the radicals are stronger, and not just in numbers, but also because of the surrender which left the radicals unrebuked.

Most conservatives and originalists are happy that Judges Brown, Owen, and Pryor are seated today. All three do great work, and each is a potential SCOTUS nominee.

For Senator McCain to argue that the sacrifice of constitutional principle in exchange for the confirmation of three or four judges in 2005 –even as Senator McConnell makes clear that judicial nominations are the most important issue for the GOP as they enter the minority– is to (1) suggest that Senator McCain is deeply, deeply out-of-touch with the grassroots of the party, (2) doesn’t understand the importance of this issue or how it in fact is a crucial part of the war on terror, the pressing nature of which –in his mind– should excuse all of his other sins against the GOP, or (3) knows that this blunder of his was so destructive of his appeal within the GOP as to require an early and repeated attempt to redefine what happened from disaster to big win. The Big Lie, in others word. Tell it to Mike DeWine and Lincoln Chafee. Tell it to the GOP heading into the minority.

It is also to set up the completely false choice that the GOP had to take the Gang’s deal or not get those three nominees (and, implicitly, the Chief Justice and Justice Alito). Had the constitutional option been deployed, all of the nominees and the SCOTUS nominees would have been confirmed. If Harry Reid had thrown a fit, we’d have spent the fall campaign debating the Democrats’ fitness for high office, not the Republicans’.

Judicial nominations matter. They matter the most in the category of domestic politics. Senator Schumer knows this. Senator McConnell knows it. Most observers of American politics know it.

Does John McCain know it? I think he is far too able a man not to.

What Senator McCain needs to do –urgently, right now– is to come clean and admit he screwed up with the Gang of 14, and in a huge way, a way that he now sincerely regrets.

His motives in the spring of 2005 hardly matter. In fact, they don’t matter at all.

What matters is that his insistence today that the Gang of 14 was a good thing telegraphs –how loud can a telegraph be?– that Senator McCain still doesn’t get it, or worse, that he gets it but cannot allow himself to be candid on this monumental error and is thus committed to compounding it.

To put it as bluntly as possible: No candidate who thinks the Gang of 14 was a good thing for the Constitution, the judiciary, or the GOP is going to win the GOP’s nomination. The courts matter too much to too many people to permit indifference or ignorance to them or about them in a presidential candidate.

“Judges are the most important,” Senator Schumer said. Outside of the war –and judges are very much not outside of the war– Schumer is absolutely right. And Senator McConnell is absolutely right to make up-or-down votes the sine non qua of GOP cooperation in the upper chamber’s business.

If Senator McCain continues to give speeches in which he declares the opposite of Senator Schumer’s and Senator McConnell’s views to be true, he will not only be contrasting his views with those of Senator Schumer and his priorities with those of the new GOP leader, he will also be telling the GOP base in “straight talk,” the message of which cannot be missed, that they are wrong, he is right, and they’d better just get the hell over it.


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