That’s not quite what Mitch McConnell proposes here in his interview last night with Hugh Hewitt, but functionally it will likely amount to the same thing. Hugh wants an end to judicial confirmations as a payback for Harry Reid’s “nuclear option” last session in removing filibusters from the process, and asks whether McConnell will follow through on it. McConnell tells Hugh that the Senate has only confirmed those judges Barack Obama has appointed that pass muster with the Republican caucus, and that’s how he sees the rest of the session going:
HH: And my last question goes to judicial nominations. I am one of those people who wouldn’t confirm another judge given the antics they pulled last year. But what is the situation vis-à-vis federal judicial nominations and the process in the Senate right now?
MM: Well, so far, the only judges we’ve confirmed have been federal district judges that have been signed off on by Republican Senators.
HH: And so you expect that that will continue to be the case for the balance of this session?
MM: I think that’s highly likely, yeah.
In other words, McConnell leaves the door open for Obama to nominate judges that the Republican majority find acceptable. It’s a formula that arguably enforces the “advice” part of “advice and consent” in the Constitution (Article II, Section 2), but with the operational wrinkle that flexes McConnell’s muscle. Normally, a President would have some leeway to gain majority approval from the Senate as a whole, but the attempt to derail minority input in the last session means McConnell wants to play hardball in this session, especially after Obama and Reid used it to pack the DC Circuit Court of Appeals.
So, McConnell will continue to advance judicial nominations to the floor for appointments that Republicans like. Those that Republicans find unacceptable won’t get to the floor, and likely won’t come out of committee. That’s an escalation of a different kind than Reid’s, but certainly in kind with the nuclear option.
Obama could respond by working with McConnell on a list of mutually acceptable jurists to fill open slots, but when has Obama responded by working with his opponents? Unfortunately, that’s Obama’s only real option/ Other than putting pressure on McConnell, Obama can’t do much about it either, especially since the courts severely restricted the recess-appointment power Obama also abused. McConnell knows getting tough on this after Reid’s stunt last year won’t lose Republicans any votes from the base, and probably won’t be important enough to lose any independents in 2016 either.
The big question will come if and when an opening on the Supreme Court occurs. That will bring enormous scrutiny on the process. Will McConnell demand that Obama work with the GOP to find a compromise candidate, and would Obama submit to that kind of process? We’ll see what happens when that game of chicken begins, but at this point it would be surprising to see any of the justices retire willingly while this stalemate exists.