Yesterday, Steve Benen described what he sees as a “silent governing failure” of Senate Majority Leader Mitch McConnell. Following a Huffington Post report that the Senate would, under his leadership, become even less productive and more intransigent about the federal judiciary, Mr. Benen reminded:
Now, some of you are probably thinking this is normal. President Obama’s second term is starting to wind down; the opposition party controls the Senate; so it stands to reason that the GOP majority would scrap plans to confirm qualified court nominees. Perhaps, the argument goes, McConnell is doing exactly what Democrats did when they had a similar opportunity.
It would be a credible argument if it were in any way true.
Indeed, Jonathan Bernstein considered the issue last month:
There’s simply no precedent for the Senate flat-out refusing to act on (most) nominations. It means poor government, mismanagement, justice delayed―and therefore justice denied.
This isn’t about the specific nominees. Mostly, this is just an expression of contempt for the man in the Oval Office―and, really, contempt for the Constitution and the senators’ oath of office.
It is the Senate’s duty to defeat judicial nominees it believes (within reason) are outside the mainstream, and it absolutely should exercise the leverage it is given by the Constitution to secure influence over executive branch departments and agencies through confirmations. That’s not what’s happening here. McConnell and the Republicans are undermining the constitutional order by simply ignoring their responsibilities. That’s a big deal, and the press and anyone who cares about a functional government should be angry.
In truth, then, we should not be surprised to learn from Alexander Bolton of The Hill that the Senate Majority Leader hopes to split hairs and back away from his own remarks:
Mitch McConnell is denying there’s a shutdown on President Obama’s federal court nominees —despite comments the Senate majority leader made on Thursday indicating such a freeze.
The clarification comes as several of McConnell’s GOP colleagues are working with the administration to fill circuit-court vacancies affecting their home states.
In an interview with the conservative Hugh Hewitt show on Thursday, McConnell (R-Ky.) noted that the Senate so far this year has only confirmed federal district court nominees who had support from Republican senators.
McConnell then predicted the trend would continue.
“And do you expect that that will continue to be the case for the balance of this session?” Hewitt asked.
“I think that’s highly likely, yeah,” McConnell responded.
But McConnell spokesman Don Stewart says that doesn’t mean Obama will not get another appellate pick confirmed before he leaves office.
“He said nothing of the sort. He said we’re going to continue to do judges. There’s not a shutdown,” Stewart said. “We probably will have a circuit court nominee.”
There is a lot going on, there. In the end, it all amounts to the same thing. The Senate will continue to deliberately hamstring American governance until “the president relents by rescinding or substantially modifying his immigration orders”, as one conservative commentator explained what he sees as “a no lose strategy”. In other words, the Majority Leader intends to use executive appointments, part of the president’s constitutionally-appointed job, as a lever against executive orders issued in the wake of a Congressional failure to pass an immigration bill, and after the Speaker of the House publicly told the president to use his executive authority.
It is not just a failure of governance. This is a betrayal.
Benen, Steve. “McConnell’s silent governing failure”. msnbc. 5 June 2015.
Bendery, Jennifer. “Mitch McConnell Says Obama’s Circuit Court Nominees Won’t Be Confirmed Anymore”. Huffington Post. 4 June 2015.
Bernstein, Jonathan. “Mitch McConnell’s One-Man Shutdown”. Bloomberg View. 22 May 2015.
Bolton, Alexander. “McConnell backs away from judicial shutdown talk”. The Hill. 5 June 2015.
Yu-Hsi Lee, Esther. “Boehner Encourages Obama To Take Executive Action, One Day After Voting To Sue Obama Over Executive Action”. ThinkProgress. 31 July 2014.