Commentary Law and Policy

Schumer Lets McConnell Fast Track 15 Judges Days Before Kavanaugh Hearings

Jodi Jacobson

With the Kavanaugh hearing just days away, Schumer "struck a deal" on judicial nominees, leaving progressives asking: Why?

Twitter lit up late Tuesday afternoon with the news that Senate Minority Leader Chuck Schumer (D-NY) had struck a deal with Majority Leader Mitch McConnell (R-KY) to allow fast-track confirmation of 15 judicial nominees. The announcement came just days before the start of confirmation hearings of controversial Supreme Court nominee Brett Kavanaugh and after nearly two years of court-packing by the Trump administration. Within a couple of hours of the announcement, seven of those judges had been confirmed to lifetime appointments.

Eight more of these nominees are slated to be voted on next week.

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Many progressives expressed deep dismay. Indivisible, for example, protested the deal, pointing to what many feel has been the Democrats’ anemic approach to the Kavanaugh nomination.

The New Republic‘s Jeet Heer posted a more polite version of the “WTF” reaction of many others.

Why is this important and what did Schumer get out of it? It’s important because these are lifetime appointments, and the GOP has been playing politics with judicial nominations for years.

Under President Barack Obama, McConnell blocked hearings on and confirmation of many Obama nominees, keeping seats open at the lower court level as well as the Supreme Court. Now, with Trump in the White House, McConnell is using his power to confirm as many appointees as possible, using the GOP’s majority party status, in the words of Rewire.News‘ Jessica Mason Pieklo, “to pack the federal courts full of radical ideologues.” As of this evening, Trump will have appointed 33 district court judges, 26 appeals court judges, and one Supreme Court justice, leaving,” as Thomas Kaplan of the New York Times noted, “an ever-expanding imprint on the judiciary, nudging powerful appeals courts rightward.” 

I called Schumer’s office three times and emailed two different staff people to ask the question on everyone’s minds and circulating on my feeds: Why? What did Schumer get in return?

I got no answer.

Talking to various colleagues, the consensus seemed to be that Schumer negotiated this deal to enable “red-state” Dems to get out earlier for recess so they could campaign. Others contended it may be part of a bigger deal in which Schumer traded lifetime appointments to the judiciary for documents from Kavanaugh’s time as White House counsel, documents they should have gotten anyway.

Criticism of the move even came from former Schumer Senate staffers. Brian Fallon, executive director of the progressive judicial group Demand Justice and a former Schumer spokesman said in an interview with Bloomberg‘s Sahil Kapur: “Mitch McConnell is in the middle of stealing the federal courts for conservatives, and Democrats continue to bring a butter knife to a gunfight. It is hard to think of a more pathetic surrender heading into the Kavanaugh hearings.”

Chris Kang, chief counsel for Demand Justice and former deputy counsel to President Obama, told me by phone that the Democrats had missed a huge opportunity to bring passion to court nominations and to underscore for their constituents both the stakes of and their commitment to the coming SCOTUS fight.

McConnell, he said, has been pushing judges through at a record rate, but “in reality, if McConnell prioritizes judges, there is not much Dems can do to stop him. They can, however, slow him down by making him use the 30 hours of floor time for every judge and run out the clock. If he is forced to file cloture on 99 percent of judges and use floor time, that slows things down.”

For most of this year, Kang said, the Dems had been doing well by doing just that, forcing the GOP to use the 30 hours of time. “The thing that is so perplexing is that suddenly they abandoned that strategy earlier this summer. This idea that now we are going to stop fighting and throw in the towel, for what? How is this the time to change tactics and be accommodating to the GOP when we are getting screwed at SCOTUS?”

Kang also pointed out that trading for extra days of recess did not make sense to him since not every senator needs to be there for every vote. “Look at [Ted] Cruz, for example,” pointing to the Republican senator from Texas. “He isn’t there for every vote because he is out campaigning.”

It’s true, Kang said, that not all of these nominees are controversial and a couple were even nominated originally by Democrats, but, he insisted, that is not the point. “It’s the very mentality among Democrats; the courts have not been a priority, and they should be.”

“All these values we are fighting for we are fighting at the district court level, cases being heard about whether to keep families together, about reproductive rights … Republicans obstructed Obama’s judges because to them there is no such thing as a ‘non-controversial’ lifetime appointment, so there should not be for Dems.”

Now, as soon as McConnell pockets those confirmations that are theoretically noncontroversial, Kang said, “he gets more time to go back and confirm more controversial ones.”

So with the Kavanaugh hearing starting Tuesday and with no clear strategy on the part of Senate Democrats to fight that nomination, Schumer gave McConnell a clear path to take more of what he’s already stolen the past several years.

And we still don’t know why.

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