People For the American Way

On Circuit Courts, An Opportunity for McConnell to Show He Can Govern

Late last week, conservative radio host Hugh Hewitt excitedly tweeted out a headline guaranteed to excite the far right Republican base:

@SenateMajLdr rules out … confirming any more President Obama circuit or SCOTUS judges.justices

But what Mitch McConnell had actually said was more ambiguous than that tweet (and the headlines it generated) suggested. In fact, it was not at all clear what he meant.

His spokesperson said over the weekend that McConnell had "said nothing of the sort." But the words of a spokesperson don't mean anything until they are matched by actions from the senator.

If the headlines were accurate, it would be a dramatic escalation in the GOP's partisan war against the efforts of Democratic presidents to fulfill their constitutional duty to fill the federal courts with qualified, fair judges. Indeed, it would make the 114th Congress the first and only one since the creation of the modern circuit court system in the 1890s not to confirm any circuit court judges.

The headlines said exactly what the radical base wants to hear. As Senate Minority Leader, McConnell clearly played to the base and used the Senate rules masterfully in order to significantly obstruct the confirmation process for all of President Obama's judicial nominees, regardless of what court they were nominated for, regardless of their record, and regardless of support from most or even all senators. McConnell damaged both the Senate and our country during this time.

But since becoming Majority Leader, McConnell has wanted to persuade Americans that he can actually run the Senate effectively and responsibly. However, making the Senate dysfunctional is not the mark of a responsible and effective Senate Majority Leader. The timely confirmation of federal judges is one of the most important tasks the Senate has, since the entire Third Branch of the U.S. government relies on the other two branches to keep it functioning. A dysfunctional Senate that will not confirm qualified judges in a timely manner threatens the American ideal of equal justice under law.

So after the headlines of the past few days, the eyes of the country are on McConnell, waiting to see if he will cater to the rabidly anti-Obama base and prevent votes on any circuit court nominees, or whether he will – as his spokesperson suggested – govern more responsibly.

Fortunately for him, he can make that clear quite easily, by scheduling a vote on Kara Farnandez Stoll, nominee to the Federal Circuit. Stoll was cleared by the Judiciary Committee without opposition more than six weeks ago, on April 23. No circuit or district court nominee has been waiting for a floor vote longer.

Another circuit court nominee – Pennsylvanian L. Felipe Restrepo, for the Third Circuit – will have his hearing before the Judiciary Committee this week. With the bipartisan support of his home state senators and having been confirmed to a district judgeship two years ago, Judge Restrepo is another clear consensus nominee. He should be approved quickly by the Judiciary Committee and sent to the Senate floor, where McConnell should schedule a timely vote for him, as well.

It would be the mark of a Senate Majority Leader who is willing and able to govern.


Federal Circuit Court of Appeals, Hugh Hewitt, judicial nominations, Kara Farnandez Stoll, Lower Federal Courts, Luis Felipe Restrepo, Mitch McConnell, Third Circuit Court of Appeals