Senate Majority Leader Mitch McConnell is beset. His own party’s president has no problem trashing him publicly as a good-for-nothing. Steve Bannon is threatening to back primary challengers to all of his incumbent senators up for re-election. And on Wednesday, several conservative groups, whose fundraising models largely consist of dunking on McConnell, released a ranty letter calling on the entire five-person Senate leadership team to resign for being, in their estimation, comprehensively useless.
Parts of the letter relitigate various Tea Party vs. establishment gripes of the past decade (You didn’t support our preferred Senate candidate in 2010!, etc.) while others blame McConnell for those Republican senators who voted “no” on Obamacare repeal. But one legitimate critique the groups level against McConnell is about the slow pace of judicial confirmations so far this year. “You confirmed President Trump’s nominee for the Supreme Court, but you’ve also left our judiciary hanging in the balance,” the letter reads. “With well over 100 vacancies on the federal bench and 50 nominees awaiting action in the Senate, you all have performed the Herculean task of confirming … seven?! That’s less than one judge per month!”
The number of federal court vacancies has risen to 149. Though President Trump has been slow to name a number of executive nominees, his White House has been sending dozens of judicial nominees to the Senate, and the Senate can’t keep up. That’s because, though nominees only need a simple majority to be confirmed, Democrats can still draw out the process for each vote to a crawl. Shifting the federal judiciary to the right is an arduous process, it turns out.
The concern over judicial nominees “bottlenecking” in the Senate isn’t just limited to these groups that wrote the letter. The conservative Judicial Crisis Network has, for instance, determined that McConnell’s inaction may constitute … a judicial crisis! According to Politico, the group had “planned on launching a $250,000 ad buy in Washington on Tuesday calling on McConnell to either change the Senate rules or keep the chamber in session until Democrats relent out of fatigue.” But McConnell’s office, Politico added, reached out to the group and held them off on running the ads. On Wednesday morning, the Weekly Standard published an interview with McConnell that might explain how.
In that piece (with just the sort of headline McConnell’s team was looking for amid accusations from conservatives that he wasn’t being aggressive enough: “Mitch McConnell Goes to the Mattresses for Trump’s Judicial Nominees”), McConnell said he would begin prioritizing consideration of judicial nominees over executive nominees. He also said, according the Weekly Standard’s paraphrasing, that “[N]o longer will ‘blue slips’ be allowed to deny a nominee a Judiciary Committee hearing and vote.”
“Blue slips” are one of those many old senatorial courtesies that have somehow survived this long in the modern, polarized political environment. The way things work right now is that senators representing a judicial nominee’s home state can block a Judiciary Committee hearing if they refuse to turn in their “blue slips,” on which they’re supposed to give their assessment of the nominee. The process, in part, is supposed to foster bipartisanship in judicial selection by allowing senators from the party that’s out of power a say, depending on where the nominees are from. (And have no doubt that between noon on Inauguration Day 2009 and noon on Inauguration Day 2017, Republicans believed their use of blue slips were their natural right bequeathed by Christ himself.) But they have appeal to senators in the majority, too, who want to preserve a leverage point for weighing in on judicial picks from their states.
The thing is: Even if McConnell wants to get rid of blue slips, it’s not really up to him. It’s up to the chairman of the Judiciary Committee, Iowa Sen. Chuck Grassley. And one thing that Grassley did not appear to appreciate Wednesday was McConnell stepping on his turf like this. “The chairman of the Judiciary Committee will determine how to apply the blue-slip courtesy for federal judicial nominees, as has always been the practice,” a Grassley spokesman said, pointedly, on Wednesday.
Around the same time Grassley released that statement, McConnell’s spokespeople were pushing back on the very idea he had ever insinuated that the decision had been made in his Weekly Standard interview. McConnell was just expressing his previously stated opinion about the treatment of blue slips, a spokesman told the Huffington Post, “not announcing a committee position.”
So … what exactly is McConnell doing here? He could be trying, somewhat clumsily, to have it both ways: to insist in the press that he’s pushing for a more aggressive approach on nominees while maintaining a more nuanced position within his caucus. Or he could be trying to offload the pressure he’s feeling from conservatives—on this particular issue, at least—to Grassley. For such a talented tactician, though, McConnell has never been that successful in escaping the blame that conservatives groups will place on him for just about anything.