How McConnell’s Bid to Reshape the Federal Judiciary Extends Beyond the Supreme Court

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October 16, 2020

Editor’s note: This story was originally published on May 21, 2019. It has been updated.

Senate Majority Leader Mitch McConnell (R-Kentucky) is widely credited with holding open a seat for President Donald Trump’s first Supreme Court appointee, Justice Neil Gorsuch, and shepherding through a second, Justice Brett Kavanaugh — and now, with the opening left by the passing of Justice Ruth Bader Ginsburg, potentially a third.

But McConnell’s crowning achievement may extend past the Supreme Court.

When President Trump took office, he had more than 100 vacancies to fill in the lower courts, including 17 in the U.S. courts of appeals — all of them lifetime appointments. The Supreme Court hears around 80 cases a year, while the courts of appeals handle tens of thousands of cases annually — often making them the last word in most cases that impact the lives of Americans.

During the first 2020 presidential debate on Sept. 29, President Trump boasted of the “record” number of judges he had appointed, adding that one of the reasons he had the chance to appoint so many was because former President Barack Obama had left so many vacancies.

“When you leave office, you don’t leave any judges,” Trump said. “That’s like, you just don’t do that.”

It wasn’t President Obama’s decision to leave the judicial vacancies, however. Just as McConnell helped cement a conservative majority on the Supreme Court for decades to come, judicial experts and journalists who spoke to FRONTLINE for Supreme Revenge, a 2019 documentary examining the political battle over the highest court, credited McConnell with holding open vacancies that Trump then filled with conservative federal judges at a breakneck pace.

McConnell himself took credit for the strategy in a December 2019 interview with Sean Hannity of Fox News. When Hannity wondered why President Obama left so many vacancies, McConnell said: “I’ll tell you why. I was in charge of what we did the last two years of the Obama administration.”

McConnell “completely changed the nature of congressional warfare against Obama and Democratic judicial nominees,” Norman Ornstein, a political scientist at the conservative think tank American Enterprise Institute, told FRONTLINE in 2019.

McConnell was exposed to the machinations of judicial appointments early in his career, when he worked for Marlow Cook, a U.S. senator from Kentucky who sat on the Senate Judiciary Committee. During his time as a staffer for Cook, McConnell saw two of President Richard Nixon’s Supreme Court nominees rejected.

“It was in those years that McConnell really came to understand the importance, the centrality of judicial nominations in our political system, both the Supreme Court nominations and also … federal lower-court nominations,” Alec MacGillis, a ProPublica reporter and author of The Cynic: The Political Education of Mitch McConnell, told FRONTLINE in 2019.

The young McConnell also learned “what it takes to get these nominations through the Senate, to really kind of figure out how to win that game, the game of judicial politics,” MacGillis said.

Those lessons proved useful when McConnell took on leadership positions in the Senate. President Obama, who found himself on the opposite side of McConnell in the political battle over the judiciary, did not view the courts as a top priority during his administration, according to judicial experts.

President Obama thought the courts were “less important to liberals than they were to conservatives,” Laurence Tribe, a Harvard Law School professor who served as a counselor during the Obama administration, told FRONTLINE in 2019. “He really had the view that the things we needed to do to make life better for the American people were not going to be done by judges anyway.”

That wasn’t McConnell’s view. Senate Republicans were in the minority for much of Obama’s tenure, but under McConnell’s leadership they employed filibusters to slow down or block the confirmation of judicial nominees — a tactic Democrats had used under President George W. Bush. GOP senators also withheld “blue slips,” which were traditionally given to the two senators from the home state of a judicial nominee for their approval or rejection.

“McConnell perfected the idea of using and distorting Senate rules to block nominees,” Ornstein said.

In order to overcome those efforts to stall appointments, in November 2013 then-Senate Majority Leader Harry Reid and the Democrats changed the rules, eliminating filibusters for federal judicial and executive branch nominees, with the exception of Supreme Court nominees.

At the time, McConnell told the Democrats, “You’ll regret this, and you may regret this a lot sooner than you think.” When Republicans took control of the Senate in 2015, confirmations of Obama’s judicial nominees slowed to a crawl.

According to the Congressional Research Service, only 28.6 percent of Obama’s judicial nominees were confirmed during the last two years of his presidency, the lowest percentage of confirmations from 1977 to 2018, the years the report covered.

When Trump won the 2016 election, Majority Leader McConnell employed the “nuclear option” when Senate Republicans blocked filibusters for Supreme Court nominees — stymieing attempts from Democrats to block Neil Gorsuch’s confirmation. In early 2019, the Senate voted to cut debate from 30 hours to two for lower-level nominees. (The change would apply to judicial nominees for district courts, but not courts of appeals or the Supreme Court.)

Thirty of President Trump’s appeals court nominees were confirmed during his first two years of office. According to CRS, that was the greatest number of appeals court nominees confirmed by the Senate in the first two years of any presidency since it started tracking that data.

The president maintained his pace through the last two years of his term. As of July 2020, Trump had appointed 53 appeals court judges — a higher number at that point in his tenure than any other recent president, with the exception of President Jimmy Carter, according to Pew Research Center. (By comparison, President Obama appointed 55 appeals court judges over the course of eight years.)

As of Oct. 1, 2020, 218 of President Trump’s judicial nominees had been confirmed, including the appeals court nominees.

They are mostly young, white and male. They will decide cases about elections, voting rights, immigration, the environment, labor, abortion, gun control and other issues that impact the lives of Americans. They will remain on the courts for their lifetimes, long after Trump’s presidency is over.

Some worry that the pitched political battles over the judiciary have affected the public’s perception of the courts.

“The courts rule and expect their decisions to be obeyed based upon a sense among the public, fostered by our Constitution, that they are the ultimate arbiters,” Jamie Gorelick, who served as deputy attorney general during the Clinton administration, told FRONTLINE in 2018. “They don’t have a standing army. They have no way to enforce their rules. Their rulings are enforced by the majesty of the courts.”

“If the American public comes to believe that this is just another political body, that you can count a Republican vote or Democratic vote, that this is a process that is easily manipulated by politicians, it hugely diminishes the courts and their ability to perform their function under the Constitution,” she said.

McConnell, however, sees the shifting judiciary as a signature accomplishment, according to his former chief of staff Josh Holmes. “McConnell knows that from a legacy point of view, from a view of center-right America, this is the most important thing you can do,” Holmes told FRONTLINE in 2018.

 

This story was largely sourced using FRONTLINE’s Transparency Project. We’ve created new ways for our audiences to search, experience and share the in-depth interviews that we use to make our films. You can explore the 39 interviews used in the making of Supreme Revenge in an interactive archive that includes all the quotes from the film in their original context, plus hours of insights, analysis and stories not included in the final cut.


Priyanka Boghani

Priyanka Boghani, Digital Reporter & Producer, FRONTLINE

Twitter:

@priyankaboghani

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