Le·gal In·sur·rec·tion

John J. "Jack" McConnell, Jr. was confirmed by the U.S. Senate yesterday after a struggle by Sen. Mitch McConnell and other Republican Senators to block the nomination by opposing an unexpected cloture petition filed by Harry Reid.

A key group of Republican Senators, led by Lidsey Graham and Lamar Alexander, vigorously argued against opposing cloture (i.e., a filibuster) because it would set a bad precedent for future Republican nominees if and when a there is a Republican President. 

Other Republicans who voted for cloture, and the inevitable confirmation, were John McCain, Scott Brown, Susan Collins, Olympia Snowe, Mark Kirk, Lisa Murkowski and John Thune.  Two additional affirmative votes were cast by Saxby Chambliss and Johnny Isakson, but only after Democrats already had enough votes.  Every one of these Republicans then voted against McConnell when the vote came to the floor.

McCain voted for cloture unexpectedly, and that may have influenced others who then saw that the filibuster would fail.

I am told that McCain had told other Republicans at a luncheon conference the day before the vote that he would vote against cloture, and had argued that position.  I contacted McCain's office both by telephone and by e-mail yesterday to ask whether McCain would confirm or deny that account, but they have not responded and have declined to go on the record.  [added:  To clarify, I spoke with a person in McCain's press office who declined to go on the record, and I followed up with an email to that person to which there has been no response.]

In a statement released by McCain around the time of the vote, McCain reiterated his opposition to McConnell, and even went so far as to assert (as had Sen. John Cornyn) that McConnell had misled the Senate Judiciary Committee (emphasis mine):

Mr. President, during my 24 years in the United States Senate I have not once voted against cloture for a nominee to the district court, and I will not do so today. As a member of the ‘Gang of 14’ in 2005, I agreed that ‘Nominees should be filibustered only under extraordinary circumstances.’ The nomination of Mr. McConnell does not rise to a level of ‘extraordinary circumstances.’”

“However, I am deeply troubled by Mr. McConnell’s less than candid responses to the Senate Judiciary Committee, his liberal judicial philosophy, including his public antipathy toward private enterprise, and his strong political activism. For these reasons, I will not support his nomination.

I am also told that Brown, Collins and Snowe were very vigorously lobbied by Senator Jack Reed (D-RI), one of the Rhode Island Senators who proposed McConnell.  Collins acknowledged as much when she stated early on that she would vote against for cloture at the behest of Reed:  "I know Jack Reed has been working this very hard."  I have asked for confirmation from Brown's office, but have received no response.

Sheldon Whitehouse (D-RI), the other sponsor of McConnell, had been threatening retaliation against future Republican nominees for many months if a filibuster against McConnell were sustained.  As reported by The Providence Journal:

Whitehouse and other Democrats made it clear that if the Republicans blocked an up-or-down vote on McConnell, they could expect retaliation when they exercised their privilege to recommend nominees for the federal trial courts in their home states.

Whitehouse's threats apparently resonated with the Republican Senators who voted for cloture, resulting in what appears to be a deal to distinguish between appellate level and District Court nominees, as further reported by the ProJo:

“I don’t want to create a Mideast environment over District Court nominees,” said Sen. Lindsey Graham of South Carolina, 1 of 11 Republicans who joined all the Democrats present in a crucial, 66-to-33 vote to invoke cloture and set up the confirmation vote. That cleared the way for the 50-to-44 vote several hours later to seat the 52-year-old McConnell on the federal bench.

The bipartisan cloture vote “was a definite signal of more harmonious deliberations” over the fitness of future nominees to the nation’s district courts, said Sen. Jack Reed. The senior senator, along with his fellow Rhode Island Democrat, Sen. Sheldon Whitehouse, had asked Mr. Obama to nominate McConnell in April 2009.
Reed and Graham thus pointed out a key distinction between nominations to the Supreme Court and to the nation’s circuit courts of appeal, on the one hand, and to the lower-level U.S. trial courts on the other.

This is, of course, a phony distinction.  As Sen. Mitch McConnell pointed out in a brilliant speech on the floor of the Senate prior to the vote, Democrats have long engaged in filibusters of Republican nominees, including District Court nominees:

“Mr. President [of the Senate], I agree that filibusters of judicial nominees should be used sparingly. Unfortunately, our friends on the other side of the aisle have filibustered judicial nominees whenever it suited their purposes to do so, whether it was to defeat nominees like Miguel Estrada, or to leverage other nominees like with the Stewart nomination. Given their persistent enthusiasm for the judicial filibuster, I do not view our Democratic friends as the arbiters of filibuster propriety.

Indeed, in 1986 the judicial nomination of now-Republican Senator Jeff Sessions (R-Ala) was withdrawn under threat of filibuster.

The distinction between District Court and appellate nominees appears to be more about preserving Senators' power to control judicial appointments in their home states, than any constitutional principle.  District Court judges serve life appointments, and can have national implications in their rulings. 

The tacit if not explicit agreement preserving home-state Senatorial privilege with regard to District Court nominations now clears the way for Obama to pack the District Courts, because the threat of a filibuster has been taken off the table. 

The filibuster of District Court nominees will be back on the table, of course, but not until we have a Republican President and Democrats want to block the nomination.

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