Had he lost this month's election to Bruce Lunsford, Mitch McConnell apparently was all set for a new career as a stand-up comedian. Because a good portion of his speech at the annual convention of the Federalist Society would have had any other group rolling the aisle. The FedSocs, however, took it all seriously. The part about how Barack Obama should be bipartisan, something McConnell has been so very good at. The part about how Obama should govern from the center, defined, of course, by McConnell and the crew that gauges the center with a heavy thumb on the scales. And the funniest part of all, about how Obama shouldn't appoint judges based on ideology.
Stephanie Mencimer at Mother Jones writes:
McConnell argued that Senate Democrats had completely distorted the confirmation process. He recalled that in 2001, two of Obama's legal advisers, the Harvard law professors Cass Sunstein and Laurence Tribe, suggested changing the judicial nomination hearing process to take into account political as well as legal philosophy. Much to his chagrin, he said, Sen. Charles Schumer (D-N.Y.) held hearings on the idea, including one titled, "Should ideology matter?"
At those hearings, McConnell claimed Schumer and other [D]emocrats said it would be important to have "ideologically moderate" judges on the bench, which McConnell took to mean judges who sympathized with certain groups rather than sticking to the law in front of them. He bashed Senate Democrats for holding up Bush's judicial nominees when Bush was doing nothing but sticking with the ancient criteria of ensuring that his nominees were competent and intelligent jurists. With a look of horror, McConnell quoted Ted Kennedy (D-Mass.), who said during the nomination hearings for Chief Justice John Roberts, "Whose side is he on?" (Of course, the Federalists and their Republican allies also ask that question of GOP judicial nominees, particularly on the issue of Roe v. Wade, but that, apparently, is not an ideological question but simply a legal one in this crowd.)
McConnell observed that Obama has said one quality he would seek in a judicial nominee is empathy, a view that McConnell derided as "unorthodox." He warned that Republicans would not sit quietly if Obama nominated judges based on ideology — i.e., which side they're on — as opposed to fealty to the law (at least the law as McConnell sees it). "We can't countenance a process where judges would favor one side in litigation," he roared. |
He related this whole routine deadpan.
As if Ronald Reagan and George W. Bush did not spend their entire presidencies doing their utmost to pack the federal courts with extremist ultras, some of whom would, among other things, reverse decades of public interest legislation like child labor prohibitions, block environmental regulations as unfair "takings," reject civil rights not specifically spelled out in the Constitution, and generally rule in an "originalist," "textualist," or "strict constructionist" manner.
Looking ahead in 1988, an internal report of Reagan's Department of Justice report - The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation - stated:
There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government--the federal judiciary. |
As Dawn Johnson wrote in the August 2002 Washington Monthly:
To hear Republicans tell it, senators shouldn't take into account such factors as the details of one's judicial philosophy or views on particular legal issues. (If they do so, critics accuse them of "Borking.") Former Reagan and Bush administration officials Douglas Kmiec and C. Boyden Gray both testified to this effect last year before a subcommittee of the Senate Judiciary Committee. Gray put it most succinctly: "Should ideology matter? I can answer in one word: No."
Of course, ideology was precisely the reason GOP senators often gave for blocking President Bill Clinton's nominees, declaring them to be too "liberal." It is an odd sort of hypocrisy: President Bush recently renewed his pledge to continue to appoint "conservative" judges in the model of Justices Antonin Scalia and Clarence Thomas. What at least some Republicans seem to have in mind is a constitutional double standard that would allow only a Republican president to consider the views of judicial nominees--and not a Democrat-controlled Senate. |
Obviously, it's not ideology per se that McConnell objects to in making court appointments. Just the ideologies that the Federalist Society members find objectionable. And when the approved FedSoc ideology that seeks a return to a pre-FDR view of government regulation combines with narrow corporate interests, the joke's on us.
As the Center for Investigative Reporting observed four years ago in Bush Judicial Nominees Bring Close Corporate Ties to the Bench:
The investigation reveals that more than a third of President Bush’s nominees to these federal courts – 21 of 59 nominations since 2001 – has a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries. Eighteen of the 21 have been nominated to the Appellate Courts in the 4th, 5th, 9th, 10th and District of Columbia circuits where those same industries frequently battle over cases with huge financial interests at stake. These five circuit courts are at the forefront of establishing judicial precedent on matters involving conflicts over natural resources. The placement of the nominees suggests an administration strategy of nominating corporate friendly judges in circuits where they will make the greatest impact. In many cases, these same corporations and industries are also major campaign contributors to the Bush Administration and the Republican Party. |
Too bad you didn't give up your day job, Mr. McConnell. Comedy's loss.
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The Overnight News Digest is posted and includes the story, Aides: Obama plans to nominate Clinton.