On Sotomayor and the Court, Watch McConnell

Those wondering how Republican senators will respond to Supreme Court nominee Sonia Sotomayor should look to the Senate Republican leader, Mitch McConnell. In voting on judicial confirmations as a senator, McConnell has consistently applied standards he laid out as far back as 1970. But recent Democratic actions may have changed McConnell’s mind on how to handle confirmation votes — and the Democrats may end up regretting their previous tactics.

As a staffer for Senate Judiciary Committee member Marlow Cook in 1969–70, McConnell served as his boss’s point man on President Nixon’s ill-fated nominations of Clement F. Haynsworth Jr. and G. Harrold Carswell to the Supreme Court. The Senate rejected Haynsworth by a 55–45 vote. Allegations of ethical improprieties doomed Haynsworth, but McConnell considered those charges mere pretense for political opposition by northern Democrats and a hostile press.

After Haynsworth, McConnell believed that “it would take an incredibly poor nomination . . . to deny the President his choice in two successive instances,” but circumstances “brought forth just such a nomination,” he later said. McConnell considered Carswell incompetent, chronically unable to follow the law as laid down by higher courts, short on professional achievement, and lacking judicial temperament. The nomination failed, 51–45.

The Senate finally confirmed Nixon’s third nominee, Harry M. Blackmun, 88–0. But McConnell believed that, “If anything, Blackmun had much more flagrantly violated that standard used to defeat Judge Haynsworth, than had Judge Haynsworth.”

This episode inspired McConnell to write a 1970 law review article as an effort “to evolve a meaningful standard by which the Senate might judge future Supreme Court nominees.” In it, he accused the Senate of employing “deception to achieve its partisan goals. This deception has been to ostensibly object to a nominee’s fitness while in fact the opposition is born of political expedience.” He presciently predicted that the “inconsistent and sometimes unfair behavior of the Senate . . . [does] not lead one to be overly optimistic about its prospects for rendering equitable judgments about Supreme Court nominees in the future.”

The young McConnell recommended specific criteria for evaluating Supreme Court nominees: a nominee must be competent, “have obtained some level of achievement or distinction,” have a judicial temperament, “have violated no existing standard of ethical conduct, and “have a clean record in his life off the bench.” This is the standard McConnell has consistently applied to Supreme Court nominees — including Democrat Bill Clinton’s nominees, Stephen Breyer and Ruth Bader Ginsburg, both of whom he voted to confirm.

But Democrats departed from McConnell’s standard by rejecting Ronald Reagan’s 1987 nomination of Robert Bork on grounds of judicial philosophy. More recently, Democrats, including then-senator Barack Obama, voted against George W. Bush’s extremely well-qualified nominees, John Roberts and Samuel Alito, for purely ideological reasons. Given that Democrats now routinely oppose Supreme Court nominations on purely political grounds, McConnell may join some GOP colleagues to conclude, albeit reluctantly, that Republicans have no choice but to do likewise.

In 1998, McConnell voted against Sotomayor’s nomination to the Circuit Court of Appeals. If he opposes her again, it will clearly signal that past Democratic conduct has compelled him to abandon his preferred confirmation standard for a more partisan approach.

­­Although known for his mastery of the Senate minority’s procedural prerogatives, McConnell has also long opposed filibustering Supreme Court nominations. As he said on Sunday, “I have consistently opposed filibustering judges — did it during the Clinton years.” But, he added, “I lost that fight.” In other words, it was Democrats who established the precedent that “the Senate will filibuster judges.” He added, “That precedent was established — ironically enough — on a Hispanic-American nominee in Miguel Estrada.”

McConnell has pointedly reserved the right to filibuster Sotomayor. In truth, it is unlikely that Republicans will employ the filibuster on Sotomayor, since there is no margin for defection among the GOP’s mere 40-member minority. But clearly the confirmation process has become even more politicized than it was when a young McConnell lamented Senate opposition “born of political expedience.”

Political observers should watch McConnell’s movement for another reason. Down the road, President Obama will probably send up to the Senate another nominee whose confirmation would alter the Court’s ideological balance much more than Sotomayor’s will.

Then Democrats may then regretfully reap what they have sown on Supreme Court nominations.