People For the American Way

Mitch McConnell’s Dangerous Power Grab

Federal Update

The Republicans who control what was once called the “world’s greatest deliberative body” have a scheme to ban a huge chunk of deliberation. Using the pretext that the GOP can’t get judicial and other nominees confirmed because of Democratic use of longstanding Senate rules, Majority Leader Mitch McConnell plans to reduce the post-cloture time available to debate district court and subcabinet nominees from 30 hours to two. That’s a reduction of 93 percent, and—like so many other things that McConnell does—it will serve his party at the expense of the nation.

District Courts Matter

While circuit court judges tend to get more attention, district courts play an extremely important and unique role in the federal judicial system. The effort to corrupt the nation’s judicial system from the top is made harder if that system rests on a solid foundation of district courts operating with integrity.

We rely on district court judges not only to interpret the law without bias, but also to make factual findings in non-jury cases without an agenda and without preconceptions. Appellate courts generally rely on those findings, accepting them as a given in most cases, and reviewing only the lower court’s legal analysis of those facts. A district court judge’s good-faith effort to determine what the facts are in the face of uncertainty is essential if the courtroom is going to serve its role as defender of justice and guardian of the rule of law.

For instance, when abortion restrictions are challenged in court, it is the district court that determines the facts for the rest of the litigation: How many clinics will close? How many women will lose access to abortion care? Sometimes, arrogant appellate judges like Brett Kavanaugh brazenly ignore the findings of fact when they are inconvenient, but that has not yet become the norm. We cannot have zealots as district judges who will accept obviously bogus science as fact and who will make factual findings that align more with their ideology than with reality.

Moreover, district courts are the level where judges actually meet the people whose lives they will affect in what may very well be one of the most important moments of that person’s life. At higher levels, judges only see the lawyers. But a district court judge has a chance to be in the same room as the immigrant desperate to be reunited with his daughter; the family and school officials who disagree over a disabled boy’s Individualized Education Program ; the woman who says she was unlawfully demoted and the supervisor who says her work was sub-par; the gay couple who doesn’t want to have to guess which merchants in town will serve them and the baker who claims an exemption from anti-discrimination laws. In addition, in these and other cases, it is only at the district court level that a federal judge can watch parties and witnesses testify, and who can therefore make determinations of credibility based on actually seeing and hearing the person.

District courts are the foundation of the federal judicial system, and that foundation must be protected from rot.

A Dangerous Power Grab

McConnell has no legitimate reason for his scheme to change the rules. It is a “solution” to a problem that does not exist. Under the current rule, Senate Republicans have had no trouble getting district court nominees confirmed at an efficient rate. In fact, President Trump’s district court nominees are moving at the same rate as President Obama’s: At this same point in their administrations, Obama had 57 as compared to Trump’s 53.

One could hardly argue that under the current rule, the chamber’s current efficiency for district court nominees has come at the expense of circuit court nominees. Quite the opposite is true. During the same period, the Senate has confirmed more than twice as many of Trump’s circuit nominees as Obama’s at this point (17 for Obama, 37 for Trump).

The GOP’s planned rules change requires a 2/3 supermajority under standing Senate rules, but McConnell plans to make the change by majority vote. So what’s really going on? Why go to such lengths?

It isn’t unprecedented obstruction by the other party that is leading him to this decision, as was the case with Democrats in 2013. It’s because senators are spending the time they need to review the records of and debate the merits of a nominee’s fitness to serve on a lifetime seat on the federal courts. . And when they have enough time to do their job in examining Trump’s nominees, it can be very disturbing for them. For instance, the Senate invoked cloture on Ryan Bounds for the Ninth Circuit and Thomas Farr for the Eastern District of North Carolina. Had the post-cloture debate been choked down to two hours, they could very well have been confirmed. But because it was 30 hours, that gave enough Republican senators time to see the kind of people they were about to give lifetime judicial appointments to, and Bounds and Farr no longer had the support of a majority of senators.

Most Republicans very much wanted both of these nominees confirmed, not in spite of their records but because of them. But the 30 hour post-cloture period got in their way.

So this is a power grab, pure and simple. And it’s only the latest in a long series of them.

During the Bush years, Senate Republicans bullied Democrats into accepting cloture on several of President Bush’s worst nominees by threatening to change the rules by majority vote. When Obama was president, they abused their power as the minority party to prevent him from filling any of three vacancies on the 11-member D.C. Circuit Court. In 2016, they abused their power as the majority party in their unprecedented refusal to consider President Obama’s nominee for the Supreme Court. In 2017, after eight years availing themselves of the blue slip policy to veto Obama nominees from their home states, they tore the policy up for Trump nominees because it would get in the way of their project of taking over  the nation’s circuit courts.

Republicans wield power ruthlessly and without principle. Whether it’s Trump or McConnell, the party is increasingly unmoored from the rule of law and the norms of democracy.

All for a Toxic Package of Nominees

The GOP is not planning to use the rules change just to fill two or three vacancies. To the contrary, they have an entire slate of district court nominees who are so manifestly unfit they never would have been nominated before the Trump era. This includes pending nominees like:

J. Campbell Barker

Nominated to the Eastern District of Texas

  • left private practice to become Texas’s deputy solicitor general (i.e., he chose his client and its legal positions, rather than the other way around)
  • defended Texas’s voter ID law that a judge found had been passed with the intent to discriminate
  • litigated against the Deferred Action for Parents of Americans (DAPA) program
  • defended Texas’s anti-choice TRAP laws
  • challenged the legality of the EPA’s 2015 Clean Power Plan
  • urged retrial of a man with an IQ of 51 who had been illegally imprisoned for 32 years after a court had overturned his conviction

Andrew Brasher

Nominated to the Middle District of Alabama

  • left private practice to become Alabama’s deputy solicitor general and eventually solicitor general (i.e., he chose his client and its legal positions, rather than the other way around)
  • defended a state law requiring proof of citizenship to vote, which the Supreme Court found unlawful
  • defended a racial gerrymander that the Supreme Court subsequently struck down
  • submitted an amicus brief in Obergefell v. Hodges claiming that same-sex couples seeking to marry fall outside the protection of the Equal Protection Clause
  • defended Alabama’s TRAP laws and violated the integrity of the court system with fraudulent “expert” witnesses

Brian Buescher

Nominated to the District of Nebraska

  • has stated that he’s opposed to letting any woman have an abortion unless needed to save her own life
  • has said that federal courts should chip away at Roe v. Wade bit by bit

Stephen Clark

Nominated to the Eastern District of Missouri

  • opposed the ACA’s contraception coverage requirement and cited widely recognized anti-choice frauds as experts in presenting misinformation to a court in an amicus brief for several anti-choice organizations
  • was listed on Lawyers For Life newsletters comparing Roe v. Wade to the Dred Scott decision and stating that “Planned Parenthood is “the nation’s #1 institution for killing innocent life”
  • claimed that “one of the next evolutions of same-sex marriage is polygamy” and misled the Judiciary Committee on the prevalence of polygamy litigation

Matthew Kacsmaryk

Nominated to the Northern District of Texas

  • promoted the deceptive propaganda that conservative Christians are being persecuted
  • opposed efforts to protect LGBTQ people from discrimination
  • authored legal writings premised on denying the experiences and essentially the existence of LGBTQ people
  • demeaned and mischaracterized supporters of 20th-century divorce laws, LGBTQ equality, and abortion rights as seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults”

Howard Nielson

Nominated to the District of Utah

  • wrote legal justifications for Bush-era mistreatment of suspected terrorists
  • was part of the politicized hiring scandal at the Bush Justice Department; DOJ’s inspector general said Nielson should never be allowed to work at any federal agency
  • opposed marriage equality in court and argued that a gay judge should have been disqualified

Michael Truncale

Nominated to the Eastern District of Texas

  • wrote that we need in-person voter ID laws because “voter fraud makes a mockery of our elections,” but admitted under oath that he had no research or personal experience to back up that claim
  • called President Obama “an un-American imposter”
  • said that Texas Democrat Wendy Davis’s “claim to fame is the fact that she wants to kill babies five months into term”

Wendy Vitter

Nominated to the Eastern District of Louisiana

  • lied under oath about urging the distribution of widely-discredited, unscientific misinformation about abortion and contraception (such as that women using birth control pills are more likely to die a violent death, or that abortion increases the risk of breast cancer)
  • refused to say that Brown v. Board of Education was correctly decided
  • opposed letting Syrian refugees resettle in Louisiana

Allen Winsor

Nominated to the Northern District of Florida

  • left private practice to become Florida’s solicitor general (i.e., he chose his client and its legal positions, rather than the other way around)
  • defended Florida’s extremely burdensome limitations on voting and registering to vote
  • defended Florida’s medically unnecessary, burdensome waiting-period requirement before a woman can exercise her right to have an abortion
  • defended the state’s ban on marriage equality
  • supported a lethal injection regime that was likened to being burned alive
  • opposed the Affordable Care Act’s contraception coverage requirement
  • tried to prevent criminal defendants subject to the death penalty from being able to demonstrate an intellectual disability if they score higher than 70 on an IQ test

Patrick Wyrick

Nominated to the Western District of Oklahoma
On Trump’s SCOTUS shortlist

  • left private practice to become Oklahoma’s solicitor general (i.e., he chose his client and its legal positions, rather than the other way around)
  • partnered with then-Gov. Scott Pruitt and industry to attack environmental protections
  • defended extremely restrictive anti-choice laws that were struck down as plainly unconstitutional
  • believes that the Constitution prohibits many if not most actions by federal agencies starting with the New Deal
  • is on Trump’s list of potential Supreme Court nominees

Conclusion

When McConnell makes utterances about fairness, the good of the Senate, and the health of the judiciary, remember who he is. He is not only the man who engineered the theft of a Supreme Court seat.

More dangerously, he is also the man who threatened to challenge President Obama as a liar during the last presidential campaign if he warned American voters that Russia was actively helping Donald Trump. This would have made Obama’s warning in the national interest perceived as a partisan effort to harm Trump. Obama felt his hands were tied, and McConnell successfully prevented the nation from finding out that an outside adversary was actively involved in the election to benefit one of the parties.

The rules change he is planning is an unnecessary power grab designed to do immense damage to our judicial system, upon which all of our rights and liberties depend. Don’t believe for a second that the man who sold us out to Russia to help his party win an election has any interest in a healthy system of courts dedicated to protecting those rights and liberties.