McConnell’s Warning re Obama Judges

At the just-concluded annual convention of the Federalist Society, GOP Senate Leader Mitch McConnell noted the potential threat to the rule of law posed by Barack Obama’s judicial nominations:

“America will soon have a new president, a president with some very unorthodox views about the nomination and confirmation of federal judges.”

Sen. McConnell pointed to Obama’s rhetoric and voting record:

“After noting that [now-Chief Justice] Roberts clearly had the intellect and qualifications to sit on the Supreme Court, he nevertheless opposed the confirmation because, as he said, he gave more weight to Judge Roberts’ ‘political philosophy.’ … [Obama] has explicitly stated on the campaign trail that the primary criteria he will use in choosing judicial nominees is their ability to empathize with certain groups.”

For those who believe in the rule of law – as opposed to judicial activism – there is “no more urgent moment” than now, McConnell concluded. Describing what we will call the McConnell Standard, the GOP Leader drew a line in the sand:

“If President Obama’s top criterion in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law. There is one side that judges should be on, and that’s the side of the law. This does not change in an Obama Administration.”

Sen. McConnell also hinted that potential Obama Supreme Court nominee Cass Sunstein of Harvard Law School is on the wrong side of the line. McConnell recalled “the infamous retreat Democrats held early in 2001 at which Professors [Larry] Tribe and [Cass] Sunstein suggested changing the ground rules on judicial confirmations” to include an ideological litmus test. As a result of Sunstein’s and Tribe’s advice,

“Democrats concluded … that [President Bush] should be entitled to little, if any, deference. … Instead of the traditional standards of legal ability, integrity, temperament, and, above all, fealty to the law, Democrats were now insisting on other considerations, like sympathy for certain groups. … [P]olitical ideology – that is, ‘whose side’ they thought a jurist was going to be on – was now the paramount criterion for confirmation.”

McConnell’s full remarks to the Federalist Society are available from CFJ upon request.