They Demand Justice When They Should Demand the Truth

Senate Majority Leader Mitch McConnell, accompanied by other top Republican leaders at the Capitol in Washington, D.C., November 14, 2018. (Aaron P. Bernstein/Reuters)

On April 6, the Daily Beast posted a piece by Chris Kang accusing Senate majority leader Mitch McConnell of “destroying the Senate” and “light[ing] norms on fire for short-term advantage” in the judicial confirmation process. Kang is chief counsel to the group Demand Justice and describes himself as “the lead nominations lawyer in the White House Counsel’s office more than half of [the Obama] presidency.” That just means that he should know better. Here are his top 10 errors.

First, Kang claims that support for the Supreme Court’s Roe v. Wade decision is “at a record high.” He links to a July 2018 NBC/WSJ poll purportedly showing that 71 percent of Americans do not want the decision overturned. But there’s a problem with that poll: it described Roe v. Wade as establishing a constitutional right to abortion “at least in the first three months of pregnancy.” That Roe v. Wade decision does not exist.

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As any law student knows, the real Roe v. Wade established a right to abortion during all nine months of pregnancy. Less than a month before the poll that Kang cites, National Public Radio reported that support for legal abortion “drops by more than half” for the second three months of pregnancy and “falls to 13 percent in the third trimester.”

Second, Kang claimed that overturning Roe v. Wade would “criminalize abortion.” The Supreme Court cannot criminalize anything. Overturning a decision that prevents states from criminalizing abortion would allow states, which means elected representatives rather than unelected judges, to criminalize abortion. Many won’t.

Third, he says that Republicans “kicked the non-partisan American Bar Association out of its traditional role evaluating potential judicial nominees.” The giveaway here is the word “potential.” Kang is talking about evaluations being done before nominations are made. Presidents, not senators or even majority leaders, make those decisions.

At least four studies (here, here, here, and here) have shown systematic ratings bias by the ABA against Republican judicial nominees. Is it really unusual, then, that Presidents George W. Bush and Donald Trump chose not to give the ABA a special, pre-nomination role in the process?

Fourth, Kang says that Republicans “rushed hearings and stacked them with multiple circuit court nominees to bypass scrutiny.” What he did not say is that the last eight Judiciary Committee chairmen, of both parties, held nearly 50 confirmation hearings with multiple appeals-court nominees.

Democrats did not complain, for example, when Chairman Orrin Hatch (R-UTtah) held ten hearings with multiple Clinton nominees. They did not complain when Chairman Ted Kennedy (D-Mass.) held ten hearings, in one-third the time, for multiple Carter nominees. In fact, Kennedy held one hearing with four appeals court nominees and another with a record seven. Now that was rushing and stacking but, again, no complaints from Democrats.

Fifth, Kang claims that “Republicans invented the ‘nuclear option.’” This refers to a way for a simple majority to change Senate practice without having to change the text of Senate rules (which requires a supermajority). Strategies to achieve this objective have been considered since at least since 1890, including in the 1990s when Republicans chose not to use it. In the way it is used today, the nuclear option was invented by Majority Leader Robert Byrd (D-W.Va.), who used it several times regarding both legislation and nominations. (Find this history here). If this means that Republicans “invented” the nuclear option, then words have no meaning.

Kang’s claim is particularly outrageous, though, because he knows that the most infamous use of the nuclear option was on Nov. 21, 2013. Democrats used it to abolish filibusters of nominations to every single position in the executive or judicial branch, save one. In April 2017, Republicans simply extended that precedent to the Supreme Court.

Sixth, Kang accuses McConnell of torching a norm by “blocking Obama nominees to the D.C. Circuit solely to prevent a majority of its judges from being Democratic-appointed.” Democrats used the nuclear option in November 2013 — when the D.C. Circuit was equally divided — to achieve just that result.

Seventh, he says that McConnell “filibuster[ed] district court judges.” A filibuster occurs when a Senate vote on a motion to invoke cloture, or end debate, fails. During Obama’s first term, the Senate voted on one motion to invoke cloture on a district court nominee; it passed, so no filibuster. During Obama’s second term, the Senate voted on 71 such motions; they all passed, so no filibusters. McConnell was majority leader during Obama’s last two years (2015-16) and he did not file a cloture motion on a nominee to any judicial position. (See all cloture votes here).

Eighth, Kang says that McConnell lit another norm on fire by “refusing to confirm packages of judges before recesses or even at the end of a Congress.” Records for this practice are held by Democrats, not Republicans.

Senate Rule 31, for example, requires that pending nominations be returned to the president when the Senate recesses for more than 30 days or between sessions of a two-year Congress. Traditionally, both parties routinely agreed to waive this rule during the annual August recess to preserve the confirmation status quo. On August 3, 2001, for the first time, Democrats objected to waiving Rule 31 for any nominees. They forced 45 judicial nominees — some received by the Senate just 24 hours earlier — to be returned and re-nominated.

At the recess between sessions of the 115th Congress, Democrats not only refused to confirm a package of judges but set a record by forcing hundreds of judicial and executive branch nominees to be returned to President Trump.

Ninth, Kang claims that McConnell “stole a Supreme Court seat by denying President Obama’s nominee Merrick Garland so much as a hearing.” It’s not possible to steal something someone neither owns or even possesses. The Constitution gives the president the power to make nominations but requires Senate consent for him to make appointments. Both Obama and the Senate fully exercised every power the Constitution gave them regarding the vacancy from Justice Antonin Scalia’s death in February 2016. The fact that Kang does not like the outcome does not mean that anyone stole anything.

Remember that, just one week after Scalia’s death, Judiciary Committee Republicans stated in writing that they would not consider a nominee to that vacancy until “after January 20, 2017.” No one knew who the nominee would be, and nearly everyone believed that Hillary Clinton would take the oath of office on January 20, 2017. Obama nominated Garland knowing that the Senate would not consider the nomination.

Republicans followed the June 1992 advice of then-Judiciary Committee Chairman Joe Biden (D-Del.). He said that if a Supreme Court vacancy occurred in the middle of that presidential election season, the president should not make a nomination. If he did, Biden said, the Senate should not consider it. There’s no record that any Democrat objected to such counsel until Republicans followed it in 2016.

Finally, Kang claims that “In 2013, Democrats used their power to change the rules and counter McConnell’s unprecedented obstruction.” He calls it “used their power” because if he called it “used the nuclear option,” it would contradict his earlier claim that Republicans invented the nuclear option.

To most people, the word “unprecedented” means what dictionaries say: unparalleled, previously unknown, that sort of thing. That’s what makes it hard to understand Kang’s accusation. I assume that by “obstruction” Kang means filibusters because that’s what Democrats “used their power” to address in 2013.

In just 16 months, from March 2003 to July 2004, the Senate took 20 cloture votes on President Bush’s appeals court nominees and every one of them failed. That’s 20 filibusters. In five years, from 2009 to November 2013, the Senate took 12 cloture votes on President Obama’s judicial nominees and six of them failed. That’s six filibusters. Cloture votes declined by 40 percent, and filibusters declined by 70 percent, leading up to Democrats using the nuclear option in 2013. (Again, see all Senate cloture votes here).

The only way to make Kang’s claim of “unprecedented obstruction” even potentially true, therefore, is to pretend that “unprecedented” means something like “significantly less.”

These are the top 10, though not the only, glaring errors in Kang’s diatribe against McConnell. There is a real, and important, debate about judicial appointments, but it should not be about such basic facts.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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