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‘We’d Like to See America Right of Center.’ Mitch McConnell Explains His Strategy on Judges

13 minute read

Senate Majority Leader Mitch McConnell knows that few victories in politics last forever.

As a senator from Kentucky since the Reagan era, he’s seen Republicans sweep in and out of power, sometimes on his own watch as a party leader. But one thing that lasts: the judges they confirm.

TIME met with Senate Majority Leader Mitch McConnell in January to talk about judges. Sitting in his grand office in the Capitol, McConnell talked expansively about his decades-long interest in getting conservative judges confirmed to the courts — “You could argue that it is my top priority,” he said — and the unique opportunity President Donald Trump has to reshape the judiciary.

“The impact that this Administration could have on the courts is the most long-lasting impact we could have,” McConnell said. “The tax bill was hugely important, but as soon as the government changes, believe me, they’ll revisit the tax code.”

Below is the Senate leader’s full interview with TIME, lightly edited for length and clarity.

Walk me through the history of your interest on this issue.

I was here as a staffer the first two years of the Nixon Administration to a senator on the Judiciary Committee when we had a couple controversial Supreme Court nominations. Later, I was on the Judiciary Committee as a senator when [Justice Antonin] Scalia and [Chief Justice William] Rehnquist were confirmed. So I’ve had a longstanding interest in advise and consent. What does it mean? And I think I’ve learned after all these years it means whatever any individual senator thinks it means. It is not like a legal standard, and it’s essentially a political exercise. And over the course of our history in this country, the Senate has had sort of different views about it. There were periods when they would confirm nominees on a voice vote, no hearing. There were other periods of senatorial assertiveness. And I think it’s pretty safe to say that since the Nixon Administration, looking at the [Robert] Bork nomination, the Clarence Thomas nomination, this is an era, if you will, of senatorial assertiveness. In other words, not just kind of rolling over to whoever the executive sends up.

We went through a period beginning in the Bush 43 Administration where the longstanding tradition of not requiring a filibuster for executive branch appointments was broken. And there were a series of filibusters of Bush 43 circuit judges, some were confirmed, some were not. We moved into the Obama Administration, we were in the minority during most of that Administration, [and] we stopped two circuit judges by requiring 60 [votes]. And Senator [Chuck] Schumer’s predecessor decided in 2013 to unilaterally change the rules of the Senate to lower the threshold.

So if you sum all of this up, where were we when we became a majority in January 2015? I have some of my members who said well, why don’t we change it back? And so I gave them a little history which is what I’ve just walked through with you, which is that actually even though I didn’t like the fact that they had broken the rules of the Senate to change the rules of the Senate, where we ended up, except for the Supreme Court, is where we had been for 230 years going down to Bush 43.

In terms of how the filibuster was used?

The tool was in the toolbox, but it wasn’t used. And the most severe test of that was the Clarence Thomas nomination, the most controversial nomination in American history. Ted Kennedy was trying to stop it, Joe Biden was trying to stop it, but not a single senator said you had to get 60 votes. And Justice Thomas was confirmed 52 to 48. So my point is, that’s how firm the tradition was down to Bush 43.

We go into the election year in 2016. It was the beginning of a one-week Senate recess. My wife and I had just landed at a vacation destination. I pick up my iPhone, and I found out Justice Scalia had passed away. I went to our hotel room and began to think about it. And the first thought I had was, if the shoe was on the other foot and this was a Republican president making a nomination to a Democratic Senate in the middle of a presidential election year, would they fill the vacancy? And I knew the answer was no. So I sent out a statement saying that the next president would fill the nomination. When we got back from the week off, we [the Republican caucus] discussed the matter, and I said if you share my view that the position we’re taking is based upon the principle that the person we’re electing this year ought to make the appointment, then whoever is nominated is irrelevant. So I recommend we not have hearings, markups, anything. Because it’s not about the well-qualified nominee I think we’re going to get — we didn’t have one yet — but it’s about who ought to make the appointment. The president sent up a well-qualified nominee. My colleagues and I continued to take the position that this ought to be done by the next president.

And then there was the rise of Donald Trump. And several of my members said well, he was doing fundraisers for Schumer three years ago. Is this guy really a Republican? So Don McGahn, who was Trump’s counsel during the election, introduced him to the Federalist Society. And they came up with the list. I was involved in those discussions.

When was your first contact with the Trump campaign?

When it was obvious he was going to be the nominee. I’m not taking credit for the list, but I was involved in the discussions about the list. And I said I thought it was a really good idea, because I knew they were going to get the list from the Federalist Society and I think that would comfort a lot of my members that he might appoint these kind of people, given his own background, which was far from, shall I say, ideologically consistent. So it went over pretty well. What no one could predict I think at that point, that’s the summer of ‘16, was that by the election both candidates would extremely unpopular. Extremely unpopular. But in the end, Donald Trump got 9 out of 10 Republican votes, and the surveys indicated that the single biggest issue bringing them home was they decided they wanted him to make the Supreme Court appointment instead of her. And so that was comforting in a situation in which a lot of voters on both sides, both Republicans and Democrats, weren’t happy with the choice.

So when Donald Trump won, a week after the election I called Don McGahn, who I heard was going to be the White House counsel. And I said Don, we’ve got an opportunity here to have a huge long-term impact on the country, if we can get more efficient. And I said in many of the years that I’ve been here, I’ve felt like the White House counsel’s office, which is generally the filter for nominees, acted too slowly, and then when it got to the Senate you had all kinds of problems. Blue slips, supermajorities, all kinds of things that can slow things down. But I said the supermajority is gone, and it’s my view that the blue slip tradition ought not to apply to circuit judges, and I’ll try to convince Senator [Chuck] Grassley of that as well, that it ought to be treated as a notification of how you’re going to vote rather than a blackball.

If there’s any power in the majority leader’s job, it’s the scheduling power. What do you do first? And I said if you can get highly qualified judges up here, I’ll bring them up as soon as they come out of committee.

This is still in that phone call between you and McGahn the week after the election?

The week after the election. And at the end of the year we confirmed a record number of circuit court judges since the circuit court system was established in 1891. And the reason we were able to do that is that we expedited that process, both at the White House and at the committee, and when they came out of committee I called them up. I feel that the impact that this administration could have on the courts is the most long-lasting impact we could have. The tax bill was hugely important, but as soon as the government changes, believe me, they’ll revisit the tax code. But here you have an opportunity, particularly if you get highly intelligent, relatively young people into lifetime positions, you can have a long-term impact on the country. So that’s what we’re in the process of doing, and if you believe as most of us do, that we’d like to see America right of center, this is the most consequential year since I’ve been year, and I’ve been here a long time. Supreme Court, deregulation, 12 circuit court judges, comprehensive tax reform. So if you’re a right-of-center person, 2017 was an incredibly successful year, and in my view the linchpin of it, the thing that will last the longest, is the courts.

So you had this call with McGahn. How did you express this to President Trump, and explain to him the opportunity that he was stepping into?

On several occasions I underscored, since this is a guy who is not a lawyer and not involved in politics until recently, just how consequential this could be for the country. And I think he agreed that it was an important thing to do. Now as he looks back on the first year, I think it’s pretty obvious that one of the things he can point to with considerable pride and have a big impact on the country is precisely what we’re talking about.

Has he said anything to you, either at the end of year one or maybe after confirming Gorsuch, referencing that fact or congratulating you and Senate Republicans?

Oh yeah. I think he feels very proud of what we’ve been able to do together. I think he’s picked great people. If he hadn’t picked somebody of the quality of Neil Gorsuch, we might not have been able to lower the threshold. I thought that the Democrats would actually give us cloture on Gorsuch, because he was so extraordinary. And when it was clear we were not going to get cloture, I was able to say to my people, look, if Neil Gorsuch can’t get 60 votes, there is nobody any Republican president could nominate who could get 60 votes, and that points out the absurdity of leaving the Supreme Court at 60 and every other court at 51. In other words, you couldn’t get anybody confirmed. And so only when that was demonstrated was I able to convince my people to do what we had to do, because we were very critical of [Democrats] for doing it three years before.

As you said, the filibuster was a tool in the toolbox that wasn’t used, but now it’s not even in the toolbox. Do you have concerns about more polarizing judges being put up, either now or next time there’s a Democratic president, since they no longer need bipartisan consensus?

I think you’re going to see presidents picking judges that reflect their views, and you’ll see the simple majority decide. Sometimes it’ll work to our disadvantage and sometimes it won’t. And I’m comfortable with that. I know that sometimes it won’t be the people that I prefer, but there are some advantages to having the presidency, and to having a majority in the Senate.

Over your long career in the Senate focused on this issue, have you seen increasing partisanship over judges? And do you see any way to reverse that trend in the near future?

I think it is the trend, and I don’t see it reversing. Because so much of what affects our country is determined in the courts. They know it, we know it, and consequential things generally do produce big debates. And you could hardly argue that the federal court system is not extraordinarily consequential. I don’t think that will change.

How much contact are you in with the White House counsel’s office on this issue?

We talk frequently. This is a priority with me. It’s one of my top priorities. In fact, you could argue that it is my top priority, in terms of the category of things that have the longest impact on the country.

So you and your members feel that the White House has been doing a fulsome job in terms of consulting with home state senators?


What happened with the three nominees who withdrew from consideration?

It’s not that unusual. Some of them just for one reason or the other don’t work out. And that’s a tiny percentage of the total number.

You were in contact with Trump starting right after his election explaining to him the importance of this issue. So now, a year out, what has been your experience with Trump on this? How engaged is personally?

I think he’s been very engaged in a very positive way.

Do you think this is still a political calculation for him based on polling with his base, or has he been interested in learning more about what conservative jurisprudence means?

I think he thinks he’s doing the right thing for the country, and I think he is too. So this has really been one of the really good stories of the first year of this administration.




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Write to Tessa Berenson at tessa.Rogers@time.com