The McConnell Special: A Lifetime Appointment in Two Hours or Less

The Senate is expected to move forward this week on a plan to limit debate on nominees.

If you can no longer use the rules to your advantage, change them, and make sure to blame someone else for it. So goes the reasoning behind the blatantly hypocritical and hyperpartisan maneuver launched by Senate Majority Leader Mitch McConnell earlier this week to quickly rubber stamp Trump administration nominees.

Never mind that McConnell and fellow Republicans used the Senate rules to limit President Obama to a scant 22 federal judges in his last two years in office. Never mind that McConnell has presided over 92 judicial confirmations in the two years since President Trump took office. Never mind the fact that the filibuster for all judicial nominees is already gone — if a pick receives the support of a bare 50+1 majority, that individual can expect to receive a spot on the bench for life, regardless of how deeply some senators may object to his or her nomination.

Now McConnell wants to reduce the time available to debate nominees by over 90% and extend the privilege of an easier process to other non-judicial Trump choices.

As it stands, when a nominee clears a committee vote and reaches the Senate floor for consideration with a “motion to proceed,” legislators have a 30-hour window to debate and consider the nominee before moving to a final vote. This debate time is critical to the Senate’s Constitutional “advice and consent” power, to ensure a nominee is qualified to hold office.

McConnell would reduce that window to just two hours.

As justification, McConnell cited Democrats’ supposed “historic obstruction” and the need “to restore the Senate’s tradition” in pushing the workaround, a rich statement given the 92 to 22 score board. This justification is also ridiculous in light of McConnell thwarting an entire Supreme Court nomination process for nearly a year, in bold defiance of all Senate tradition at the close of the Obama administration. Yet McConnell’s move is more than just a laughable attempt to fast-track dangerous nominees to the bench and key administrative posts. It’s a threat that would deeply affect the work of public interest litigants everywhere, especially Earthjustice.

An affront to the fight for justice

Earthjustice’s litigation often makes its way through the federal district courts, and we rely on the impartiality of the judges before whom we appear in order to protect our planet and its people.

Last week alone, we received a decision in the U.S. 9th District Circuit Court immediately restoring permanent protections from offshore drilling to 98% of the Arctic Ocean and key deepwater canyons in the Atlantic Ocean. The decision will prevent the Trump administration from holding six offshore lease sales it hoped to schedule in the Arctic Ocean as early as this year, and it will have profound benefits for the people of Alaska, particularly Native people like the Gwich’in who rely on a healthy Arctic coastal plain to protect their way of life.

However, the Senate’s proposed rules change would make it easier for President Trump to install unqualified or deeply biased individuals onto the bench, which would limit the public’s right to seek justice in court.

The parade of deeply unqualified nominees

Just consider the track record of several recent Trump nominees’ failures to disclose key issues with a direct impact on their nominations:

  • A nominee who failed to disclose previous comments defending Nathan Bedford Forrest, the first Grand Wizard of the KKK, as well as a potential conflict of interest with his spouse’s White House employment;
  • A nominee who failed to disclose his memberships in organizations specifically denying admittance to women, people of color, and Jewish people;
  • A nominee who called transgender children part of “Satan’s plan” in speeches and failed to disclose the comments as part of his nomination process, an omission even Republican Senate Majority Whip John Cornyn called “a serious breach of protocol”; and
  • A nominee who failed to disclose previous anti-women’s health efforts, particularly literature she distributed claiming abortions caused cancer.

It’s hardly a leap of faith to imagine that nominees chosen in spite of their thin records and in part for their commitment to a consistently radical worldview might pose a threat to the impartiality of the bench if confirmed. And yet, that’s exactly what this administration and its allies in Congress — namely McConnell — propose to do.

It is unsurprising (if dismaying) that in the wake of defeat after defeat in the courts, the Trump administration and its dirty energy-sponsored allies in the Senate are seeking to change the rules and speed confirmations on nominees, many whom are more likely to rule in their favor.

The Trump-McConnell power grab would also make it easier to push through the nominations of key federal officials, like Trump’s choice to lead the National Oceanic and Atmospheric Administration (NOAA), Barry Myers. Myers is before the Senate for the third time this week: Congress failed to confirm him multiple times due to his personal and professional conflicts of interest as the longtime CEO and general counsel of a private weather company, not to mention his lack of qualification as one of the first non-scientist picks for the role. McConnell’s rules change would extend to unqualified, conflicted sub-cabinet nominees like Myers, making it easier to put Trump’s friends in key posts without proper scrutiny.

There’s no shortage of other Trump nominees who might’ve slipped by without the scrutiny that current Senate rules provide. Michael Dourson, once nominated to head the EPA’s chemical safety division responsible for implementing the Toxic Substances Control Act (TSCA), spent his career as a scientist for hire by big chemical companies who stood to profit from the manufacture of harmful substances affecting farmworkers, families, and children. Bill Wehrum, once nominated to oversee issues involving air safety, spent years during the George W. Bush administration developing dirty air rules later found to be illegal.

Sen. Jeff Merkley (D-Ore.) questions into nominee Bill Wehrum for his climate science denial.

And Sam Clovis, a former talk show host and Trump campaign loyalist nominated to be the head scientist at the U.S. Department of Agriculture — you read that right — was defeated after closer scrutiny of his record. What do each of these nominees have in common? All of them were nominated for positions that would be rushed through the process under McConnell’s new gambit.

Alex Hanson / CC BY 2.0
Sam Clovis is not a scientist, but he was President Trump’s nominee for chief scientist at the U.S. Department of Agriculture.

Real justice means that the people’s courts remain open and fair to the people and the public interest organizations who defend them — not just wealthy corporations with armies of well-paid litigators. Real justice means that the people of this country have a say, through their elected representatives, in considering the records of nominees for essential government roles. The decision to invoke the “nuclear option” to ram through even more Trump nominees is an affront to the fight for justice that so many are engaging in across the country today. All senators should oppose this sham.

A legislative director in Washington, D.C., Coby works with Congress, federal agencies, and partner organizations to defend access to justice through access to the courts.

Established in 1989, Earthjustice's Policy & Legislation team works with champions in Congress to craft legislation that supports and extends our legal gains.

United States Senator and Senate Minority Leader Mitch McConnell of Kentucky speaking at CPAC 2011 in Washington, D.C. (Gage Skidmore / CC BY-SA 2.0)