Executive Summary
Senator Mitch McConnell engineered a rightward shift of the U.S. federal judiciary throughout his political career, culminating in a Supreme Court decision in June 2022 when the Court’s conservative majority revoked the constitutional right to an abortion by reversing Roe v. Wade, which had stood for almost 50 years.Supreme Court of the United States, “19-1392 Dobbs v. Jackson Women’s Health Organization,” supremecourt.gov, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Within a week of the 2016 presidential election of Donald Trump, then-Senate Majority Leader McConnell phoned the man who soon would be White House Counsel. “We have an opportunity here to do something really important for the country,” McConnell told Don McGahn, whom he had known for years. “I think the most long-lasting impact we could have would be lifetime appointments to the court, particularly the circuit courts and the Supreme Court.”The Federalist Society, “Keynote Address by Mitch McConnell, 2018 Kentucky Chapters Conference,” fedsoc.org, October 29, 2018, https://fedsoc.org/conferences/2018-kentucky-chapters-conference?#agenda-item-keynote-address-by-mitch-mcconnell McGahn had been campaign counsel for Donald Trump’s 2016 presidential run and went on to serve as White House Counsel from January 2017 to October 2018.Scott Horsley, “White House Lawyer Quits After Helping Trump Put His Mark on the Federal Bench,” npr.org, October 17, 2018, https://www.npr.org/2018/10/17/656945741/white-house-lawyer-quits-after-helping-trump-put-his-mark-on-the-federal-bench
Aiming for maximum influence, McConnell and McGahn formulated a plan to target the two highest courts. By the end of President Trump’s term, with their help, Trump had appointed three Supreme Court justices, giving the Court a solid 6-3 conservative majority.Laura Bronner and Elena Mejía, “The Supreme Court’s Conservative Supermajority Is Just Beginning To Flex Its Muscles,” fivethirtyeight.com, July 2, 2021, https://fivethirtyeight.com/features/the-supreme-courts-conservative-supermajority-is-just-beginning-to-flex-its-muscles/ (A president nominates a person to a court, and if the Senate confirms then the person is considered appointed.) All three of Trump’s Supreme Court appointees voted to overturn Roe v. Wade in 2022, which was one of Trump’s campaign promises.Dan Mangan, “Trump: I’ll Appoint Supreme Court Justices To Overturn Roe v. Wade Abortion Case,” cnbc.com, October 19, 2016, https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html Though serving just one term, Trump appointed more Supreme Court justices than any president since Ronald Reagan.
Trump appointed 54 circuit court appellate judges in his one term, just one fewer than President Obama in his two terms, accounting for 30 percent of all appellate judges.United States Courts, “Judgeship Appointments by President,” uscourts.gov, accessed on July 4, 2022, https://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president Three of the 13 previously liberal-leaning appellate districts (in Atlanta, New York, and Philadelphia) flipped Republican. Appellate judge nominees sailed through the Senate with a 94.7 percent confirmation rate, higher than the rate of any modern president since Jimmy Carter.Congressional Research Service, “Judicial Nomination Statistics and Analysis: U.S. Circuit and District Courts, 1977-2020,” crsreports.congress.gov, May 18, 2021, https://crsreports.congress.gov/product/pdf/R/R45622
Under the leadership of then-Senate Majority Leader McConnell, Trump appointed 174 judges to district courts.U.S. Courts, “Judgeship Appointments by President,” uscourts.gov, accessed on July 4, 2022, https://www.uscourts.gov/sites/default/files/apptsbypres.pdf Trump also appointed 10 judges to federal claims courts, three to international trade courts, and one to territorial claims court. These new federal judges are about four years younger on average than previous appointees, meaning they will remain on the bench longer than their counterparts.Micah Schwartzman and David Fontana, “Trump Picked the Youngest Judges To Sit on the Federal Bench. Your Move, Biden.” washingtonpost.com, February 16, 2021, https://www.washingtonpost.com/outlook/2021/02/16/court-appointments-age-biden-trump-judges-age/ See also: Moiz Syed, “Charting the Long-Term Impact of Trump’s Judicial Appointments,” projects.propublica.org, October 30, 2020, https://projects.propublica.org/trump-young-judges Indeed, McConnell told a Federalist Society crowd in 2019 that one of his favorite weeks during the Trump presidency was when the Senate confirmed two jurists. One was 37. The other was 39.The Federalist Society, “Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference,” fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn All told, he appointed 245 federal judges, counting those on the Supreme Court, appellate courts, claims courts, and other lesser-known positions.United States Courts, “Judgeship Appointments by President,” uscourts.gov, accessed on July 4, 2022, https://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president [See Appendix B for data on judicial appointments dating back to Ronald Reagan.]
With McConnell’s help, Trump appointed more unqualified judges than any president in the history of judicial ratings, based on assessments given since 1953 by the American Bar Association.Based on analysis of downloaded data from the Federal Judicial Center, “Biographical Data of Article III Federal Judges, 1789-present,” fjc.gov, accessed on July 4, 2022, https://www.fjc.gov/history/judges
McConnell, a Republican from Kentucky, has served in the Senate since 1985. A master of the Senatorial process, he has wielded tremendous influence over the course of several presidential administrations and is the longest-serving Republican Senate leader in history.Mitch McConnell, “Biography,” mcconnell.senate.gov, accessed on July 4, 2022, https://www.mcconnell.senate.gov/public/index.cfm/biography He considers his “transformation of the federal judiciary” a highlight of his career.Mitch McConnell, “Biography,” mcconnell.senate.gov, accessed on July 4, 2022, https://www.mcconnell.senate.gov/public/index.cfm/biography
Biography
Mitch McConnell was born in Alabama on February 20, 1942, and grew up in Louisville, Kentucky. He went to law school and was admitted to the Kentucky bar in 1967. He was an elected judge-executive of Jefferson County, Kentucky, before becoming a U.S. senator for the state of Kentucky in 1985.Biographical Directory of the Unites States Congress, "MCCONNELL, Addison Mitchell (Mitch)," bioguide.congress.gov, accessed on July 5, 2022, https://bioguide.congress.gov/search/bio/M000355
Democrats and Republicans in the Senate choose a party leader for each new Congress to act as a spokesperson and coordinator of legislative strategies. The leader of the party in power is called the majority leader, while the other party's head is the minority leader.United States Senate, “About Parties and Leadership | Majority and Minority Leaders,” senate.gov, accessed on July 5, 2022, https://www.senate.gov/about/origins-foundations/parties-leadership/majority-minority-leaders.htm McConnell is the longest-serving Republican party leader, having held the position since 2007. He was majority leader from 2015-2021, and minority leader from 2007-2015 and 2021-present (as of July 2022).United States Senate, “Longest-Serving Party Leaders,” senate.gov, accessed on July 5, 2022, https://www.senate.gov/senators/longest-serving-party-leaders.htm
TIME Magazine named McConnell among the 100 Most Influential People in 2015 and 2019, noting on the second occasion that his "mastery of parliamentary procedure ... has shaped the direction of the Supreme Court for generations to come."John Boehner, "Mitch McConnell," TIME Magazine, 2019, https://time.com/collection/100-most-influential-people-2019/5567755/mitch-mcconnell/ McConnell, a Baptist, said at a 2014 campaign event that he was baptized at age 8, and spoke about Christian values being under threat in the United States. "There almost seems to be a discrimination against people of faith that I don’t like," he said.Adam Beam and Bruce Schreiner, "In Tight Senate Race, McConnell Talks Religion," cincinnati.com, August 15, 2014, https://www.cincinnati.com/story/news/2014/08/15/sen-mitch-mcconnell-faith/14116511/
A 2014 biography of McConnell claimed that he had been pro-choice and pro-union in his 20s and 30s, but shifted firmly towards conservatism after being elected to the Senate in 1985 based on his forecast that the Republican party and Kentucky would become more entrenched in those views.Fresh Air, "Sen. Mitch McConnell's Political Life, Examined, In 'The Cynic,'" nor.org, November 20, 2014, https://www.npr.org/2014/11/20/365484670/sen-mitch-mcconnells-political-life-examined-in-the-cynic McConnell's own Senate biography highlights that he "led a transformation of the federal judiciary" and that his decision to "keep a Supreme Court vacancy open during the 2016 presidential election gave him the opportunity to confirm three justices as majority leader. In four years, he also prioritized the confirmation of 30% of circuit court judges nationwide."Mitch McConnell, "Biography," mcconnell.senate.gov, accessed on July 5, 2022, https://www.mcconnell.senate.gov/public/index.cfm/biography His tenure as majority leader during Donald Trump's presidency afforded him the ability to make a lasting influence on the federal judiciary.
The Evolution of McConnell’s Views on Supreme Court Appointments
As a young lawyer, Mitch McConnell served as a staff assistant to Kentucky Senator Marlow Cook, a member of the Judiciary Committee during the 1970 Supreme Court nomination process that led to the eventual appointment of Harry Blackmun, who would go on to write the Court’s majority opinion in Roe v. Wade. The Senate rejected two other Nixon nominees. When the process ended, McConnell wrote an article for the Kentucky Law Journal, published in 1970, with his recommendations for what should happen in future Supreme Court confirmations.Mitch McConnell, "Haynsworth and Carswell: A New Senate Standard of Excellence," uknowledge.uky.edu, 1970, https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2660&context=klj
“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice,” the young McConnell wrote. “At the outset, the Senate should discount the philosophy of the nominee.”Mitch McConnell, "Haynsworth and Carswell: A New Senate Standard of Excellence," uknowledge.uky.edu, 1970, https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2660&context=klj
The role of the Senate, he wrote, “is to advise and consent to the particular nomination, and thus, as the Constitution puts it, ‘to appoint.’ This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”
Over time, McConnell’s views changed. On Valentine’s Day weekend, 2016, McConnell, now Senate majority leader, had just landed in St. Thomas for a week-long vacation with his wife when he received news that conservative Supreme Court Justice Antonin Scalia had died.Charles Homans, "Mitch McConnell Got Everything He Wanted. But at What Cost?," nytimes.com, January 22, 2019, https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html
President Obama would get to name a replacement. At the time, the Court had four liberal and four conservative justices, with Justice Anthony Kennedy often acting as a critical swing vote. Another appointment could swing that balance and influence Supreme Court decisions for years.Ilya Shapiro, "Justice Kennedy: the Once and Future Swing Vote," cato.org, November 13, 2016, https://www.cato.org/commentary/justice-kennedy-once-future-swing-vote
McConnell issued a statement that declared “the Scalia vacancy should not be filled until we have a new president.”Mitch McConnell, “Press Releases: Justice Antonin Scalia,” mcconnell.senate.gov, February 13, 2016, https://www.mcconnell.senate.gov/public/index.cfm/2016/2/justice-antonin-scaliaThe Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn He said it was “the most consequential decision of my career” and that Democrats would do the same in an election year.
Four weeks later, Obama named Merrick Garland, Chief Judge on the D.C. Circuit Court of Appeals, as his choice to replace Scalia. Garland had been a federal judge for 19 years, enjoyed bi-partisan support, and was in McConnell’s own estimation “a well-qualified individual.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
McConnell refused to schedule a Senate hearing to consider the nomination. “I didn’t want it to be about the person,” he said. “I wanted it to be about the process.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
Josh Holmes, McConnell’s former chief of staff, told PBSPBS, “Supreme Revenge: Josh Holmes, Former Chief of Staff for Mitch McConnell,” pbs.org, December 11, 2018, https://www.pbs.org/wgbh/frontline/interview/josh-holmes-2/ that McConnell believed that the initially outraged Democrats would eventually move on to the election. “His calculation, which proved correct, was that Democrats cared much more deeply about the results of a presidential election than they did about the judiciary, and that all of the time, effort and resources that they had dedicated to pushing the Merrick Garland issue, pushing the Supreme Court issue, advertising in states, that all of that would eventually evaporate about the time the nomination was secured for Hillary Clinton,” Holmes said. “And sure enough that’s exactly what happened.”PBS, “Supreme Revenge: Josh Holmes, Former Chief of Staff for Mitch McConnell,” pbs.org, December 11, 2018, https://www.pbs.org/wgbh/frontline/interview/josh-holmes-2/
A New York University law review essay written by University of Illinois law professors Robin Bradley Kar and Jason Mazzone concluded that McConnell’s decision violated Senatorial norms and had no historical precedent.Robin Bradley Kar and Jason Mazzone, "The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers To Appoint a Replacement for Justice Scalia," nyulawreview.org, 2016, https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReviewOnline-91-Kar-Mazzone.pdfUnited States Senate, “Supreme Court Nominations (1789-Present),” senate.gov, accessed on July 4, 2022, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm “There have been 103 prior cases in which—as in the case of Obama’s nomination of Garland—an elected President nominated someone to fill an actual Supreme Court vacancy and began the nomination process prior to the election of a successor,” the professors wrote. “In all 103 cases, which go back all the way to the earliest days of the Republic, the sitting President was able to both nominate and appoint a replacement Justice—by and with the advice and consent of the Senate, and regardless of the senatorial rules and procedures in place.”Robin Bradley Kar and Jason Mazzone, "The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers To Appoint a Replacement for Justice Scalia," nyulawreview.org, 2016, https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReviewOnline-91-Kar-Mazzone.pdf
McConnell contradicted the very premise of the law review article he had written back in 1970, which he acknowledged in 2019 to a Federalist Society legal audience in Kentucky. “Upon reflection, everything I said was wrong," he said. "There’s no doubt the confirmation process means whatever the Senate thinks at any given time.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
So, when Justice Ruth Bader Ginsburg died on September 18, 2020, less than six weeks before Election Day, McConnell changed the confirmation process yet again. Rather than play by the rules he established for Obama that denied a seat to Garland, he declared that the seat would be filled immediately.
“He knew that there was going to be a chaos unleashed in the news media about the appropriateness of filling this seat, and the argument to his members is basically: ‘Look, did you come here to make a difference, or did you come here just to put on a show? And if you're coming here to make a difference, this is the biggest difference you may ever make in your entire career, and it doesn't really matter how long you stay, right?’” Holmes recalled.PBS, “Supreme Revenge: Josh Holmes, Second Interview with the Former Chief of Staff for Mitch McConnell,” pbs.org, October 27, 2020, https://www.pbs.org/wgbh/frontline/interview/josh-holmes-3/
“He's been there for a long time, since 1985. He's watched the entire course play out of the judicial wars. This is the moment where conservatives can cement a conservative majority for generations,” Holmes said.
McConnell reached Trump that night after he left a rally in Minnesota, told him of his plans, and said, “You’ve got to nominate Amy Coney Barrett,” Holmes told PBS. Within a week, Trump named her to fill the slot, and she was confirmed in 27 days.Emma Kilheeney, "The Appointment of Amy Coney Barrett," hoddereduction.co.uk, December 2020, https://www.hoddereducation.co.uk/media/Documents/magazine%20e-reviews/December%202020/Politics_update_Dec2020.pdf?ext=.pdf With 293 days before the 2016 election, McConnell had refused to bring a vote on Obama’s March 16, 2016, nomination of Merrick Garland to the Supreme Court.Congressional Research Service, “Supreme Court Appointment Process: President’s Selection of a Nominee,” sgp.fas.org, March 8, 2022, https://sgp.fas.org/crs/misc/R44235.pdf In 2020, McConnell pushed Barrett through the procedural process to a confirmation on October 26, 2020, eight days before the 2020 election.Nicholas Fandos, “Senate Confirms Barrett, Delivering for Trump and Reshaping the Court,” nytimes.com, October 26, 2020, https://www.nytimes.com/2020/10/26/us/politics/senate-confirms-barrett.html
Changing the Rules of the Game
McConnell titled his 2016 memoir, "The Long Game," because that is how he views politics, looking far into the future. “He sees things. … where they can lead 10, 15, 20, 30 and now 40 years down the line,” Holmes said.PBS, “Supreme Revenge: Josh Holmes, Former Chief of Staff for Mitch McConnell,” pbs.org, December 11, 2018, https://www.pbs.org/wgbh/frontline/interview/josh-holmes-2/
When Democrats defeated Reagan’s Supreme Court nomination of Robert Bork in 1987, the young McConnell was outraged. Just two years into his Senate term, he realized that the idealistic law review article he had written was already irrelevant. The Bork decision meant that the Senate had established “judicial philosophy” as a relevant factor when considering Supreme Court nominees, he said in an October 22, 1987, speech available on C-Span. He predicted that at some point in the future, if a nominee had a philosophical stance the other party didn’t like, it would “shoot them down.” “We’re going to do it,” he warned. “We’re going to do it when we want to.”C-Span, “User Clip: Sen. Mitch McConnell Senate Speech on Robert Bork, October 22, 1987,” c-span.org, accessed on July 4, 2022, https://www.c-span.org/video/?c4826828/user-clip-senmitch-mcconnell-senate-speech-robert-bork
In the years that followed, the confirmation process for federal judges became increasingly polarized. Democrats filibustered many of George W. Bush’s appellate court nominees. They refused to schedule a hearing for two years for Miguel Estrada, nominated for the D.C. Court of Appeals, and considered someone who could one day become the first Hispanic member of the Supreme Court. Estrada eventually withdrew from the process. Republicans were incensed.Tampa Bay Times, "Federal Judge Fight Flares as Nominee Estrada Withdraws," tampabay.com, September 5, 2003, https://www.tampabay.com/archive/2003/09/05/federal-judge-fight-flares-as-nominee-estrada-withdraws/Michael Foust, "Miguel Estrada Withdraws Nomination from Senate," baptistpress.com, September 4, 2003, https://www.baptistpress.com/resource-library/news/miguel-estrada-withdraws-nomination-from-senate/
When Obama became president, McConnell led “a disciplined, sustained, at times underhanded campaign to deny the Democratic president the opportunity to appoint federal judges,” the New York Times reported.Jason Zengerle, "How the Trump Administration Is Remaking the Courts," nytimes.com, August 22, 2018, https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html
“Historic successes, historic delays,” read a 2013 Obama White House infographic, which complained that 69 percent of his judicial nominees had waited more than 100 days for a floor vote compared with 15 percent of Bush’s.The White House, President Barack Obama, "Infographic: President Obama's Judicial Nominees," obamawhitehouse.archives.gov, September 24, 2013, https://obamawhitehouse.archives.gov/share/judicial-nominees
Finally, in November 2013, under then-Senate Majority Leader Harry Reid, the Senate lowered the voting threshold for debate on judicial appointments (except the Supreme Court) to a simple majority, which enabled Obama to get 132 judges appointed.Paul Kane, "Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters on Nominees," washingtonpost.com, November 21, 2013, https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html McConnell warned Reid he would regret the move, which was considered a “nuclear option” because it was so extreme.
“I said someday the shoe will be on the other foot. Funny how that happens,” McConnell recalled.The Federalist Society, "Keynote Address by Mitch McConnell, 2018 Kentucky Chapters Conference," fedsoc.org, October 29, 2018, https://fedsoc.org/conferences/2018-kentucky-chapters-conference?#agenda-item-keynote-address-by-mitch-mcconnell
Reid never regretted the decision. “We had over 100 judges that we couldn't get approved, so I had no choice. Either Obama's presidency would be a joke or Obama's presidency would be one of fruition," Reid told the New York Times.Mark Leibovich, "Harry Reid Has a Few Words for Washington," nytimes.com, January 2, 2019, https://www.nytimes.com/2019/01/02/magazine/harry-reid-senate-cancer-trump.html
When McConnell became majority leader in 2015, he again began blocking Obama’s appointments. Ever the strategist, he did not reverse Reid’s decision to lower the voting threshold. “I like where we are,” he said. “We may benefit from this.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
By the time Trump took office, there were more than 100 judicial vacancies ready for him to fill, as well as the seat that would have gone to Merrick Garland. “I’ll tell you why. I was in charge of what we did the last two years of the Obama administration,” McConnell boasted on Fox News in 2019.Fox News, "Sen. McConnell: No Chance the President Is Going To Be Removed From Office," video.foxnews.com, December 13, 2019, https://video.foxnews.com/v/6115454801001#sp=show-clips
A lawyer by training, McConnell had come to view the judiciary as holding more lasting power than any legislation, which could simply be undone by the next election. With lifetime appointments, there was virtually no way to remove a federal judge, barring impeachment.
As a politician, he was keenly aware of the political significance of matters that came before judges. Judicial decisions could shape critical issues involving the scope of government regulation, the environment, big business, healthcare, individual rights, abortion, gun rights, campaign finance, and more.
When Trump was elected, with Republicans controlling the Senate, McConnell realized the time had come to reshape the judiciary the way he wanted. “Before I went to bed on election night, I had resolved to make the federal judiciary my personal priority in the next Congress,” he wrote in his memoir.Mitch McConnell, "Afterward: The Long Game and the Federal Judiciary,” in The Long Game: A Memoir, Sentinel, 2019
He and McGahn crafted a plan to expedite the confirmation process for conservative federal judges, bypassing White House committees and the Department of Justice, which traditionally weighed in on the process.
The Federalist Society, a group of conservatives and libertarians founded in 1982 to reform “the current legal order,” became the vetting arm for Trump’s Republican federal judges. While many say that Trump outsourced the nomination process to the Federalist Society, Don McGahn, former White House Counsel under Trump, said that was misleading. “We didn’t tap into the network. We are the network,” he declared in 2019.
The Federalist Society would supply names of potential nominees. American Bar Association (ABA) ratings would be ignored. McConnell worked with then-Senate Judiciary Chairman Chuck Grassley (R-Iowa) to do away with the “blue slip” policy that allowed senators to veto nominees from their home states. Republicans had used the blue slips to deny Obama many of his nominations.Jason Zengerle, "How the Trump Administration Is Remaking the Courts," nytimes.com, August 22, 2018, https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html
“I said to him, ‘Don, just send up the best conservative nominees you can, and as quickly as you can, and Chuck and I will take care of the rest.’”Mitch McConnell, "Afterward: The Long Game and the Federal Judiciary,” in The Long Game: A Memoir, Sentinel, 2019 McGahn said Trump fully endorsed McConnell’s plan. “Let’s move,” Trump told him.The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
McConnell’s Evolving Standard for Federal Judges
The judicial selection process, centralized in the White House Counsel’s office, operated differently under Trump than in the past. Every member of the office was a member of the Federalist Society. Since nominees now needed only a simple majority vote, McGahn said they compiled long paper trails on nominees to make sure they would be the kind of judges who were skeptical of big government and believers in the rule of law. Previous administrations had avoided such documentation when there was a super majority, knowing it could lead to heated hearings.The Federalist Society, "Keynote Address by Don McGahn - Third Circuit Chapters Conference," fedsoc.org, October 24, 2019, https://fedsoc.org/conferences/third-circuit-chapters-conference?#agenda-item-luncheon-and-speech
“We wanted to see a real track record and a little bit of stretching out intellectually to see where people really were and how they would make decisions,” McGahn said.The Federalist Society, "Keynote Address by Don McGahn - Third Circuit Chapters Conference," fedsoc.org, October 24, 2019 https://fedsoc.org/conferences/third-circuit-chapters-conference?#agenda-item-luncheon-and-speech The office received input from senators, sitting judges whose clerks were in the mix, co-clerks, lawyers, and others, all to make sure that nominees would be committed to the Federalist Society ideas of originalism and textualism. Originalism means interpreting the Constitution as it was written, while textualism assumes that the meaning of a document can be found in the text itself. Trump’s first nominee to fill the Scalia seat was federal appellate court judge Neil Gorsuch, a Harvard Law graduate who had been on the 10th Circuit since 2006 and had clerked for Justices Byron White and Anthony Kennedy. He was also a prominent member of the Federalist Society, which, since his appointment, has featured lectures across the country titled “From Bork to Gorsuch: How Originalism was Mainstreamed.”The Federalist Society, “From Bork to Gorsuch: How Originalism was Mainstreamed,” fedsoc.org, July 21, 2017, https://fedsoc.org/events/from-bork-to-gorsuch-how-originalism-was-mainstreamed
McConnell did not want any problems in getting Gorsuch confirmed. So when Democrats began filibustering the nomination, he went one step further than Reid did in 2013 and lowered the voting threshold to a simple majority for what is known as a cloture vote. Though rarely used in Supreme Court hearings—Democrats did not use the cloture vote in the Clarence Thomas confirmation hearings—the change meant that Republicans needed only a simple majority, not 60 votes, to end the debate over Gorsuch and proceed to a vote they knew they would win.Congressional Research Service, "Supreme Court Appointment Process: Senate Debate and Confirmation Vote," sgp.fas.org, February 22, 2021, https://sgp.fas.org/crs/misc/R44234.pdf The Senate then confirmed Gorsuch with a 54-45 vote.United States Senate, “Roll Call Vote 115th Congress - 1st Session, Vote Summary, Question: On the Nomination (Confirmation Neil M. Gorsuch, of Colorado, to be an Associate Justice of the Supreme Court of the United States),” senate.gov, April 7, 2017, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1151/vote_115_1_00111.htm
“I was not about to let Democrats block this extraordinary nominee out of spite. I had warned Democrats not to ‘nuke’ the Senate’s rules; they had ignored the Senate GOP’s views, and now they would reap the whirlwind,” McConnell wrote in his memoir.Mitch McConnell, "Afterward: The Long Game and the Federal Judiciary,” in The Long Game: A Memoir, Sentinel, 2019 He had vowed to Reid that he would regret changing Senate rules, and now McConnell had changed them with even greater consequences.
After Trump’s election, some leading Democrats acknowledged the Reid nuclear option might have backfired. Senator Chuck Schumer (D-New York) said on CNN in 2017 that he wished it had never happened. “I argued against it at the time,” he said, adding that he thought the Supreme Court threshold “should be 60 because on such important positions there should be some degree of bipartisanship.”Eugene Scott, "Schumer: I Wish We Hadn’t Triggered ‘Nuclear Option’," cnn.com, January 3, 2017, https://edition.cnn.com/2017/01/03/politics/chuck-schumer-nominees/index.html Senator Mark Warner (D-Virginia) told Fox News in 2021, “I wish we wouldn’t even have started this a decade ago.”Danielle Wallace, "Warner Regrets Harry Reid’s Filibuster Change: ‘I Wish We Wouldn’t Even Have Started This'," foxnews.com, July 25, 2021, https://www.foxnews.com/politics/warner-harry-reid-filibuster-change-infrastructure-bill-voting-rights-election-law
The McConnell rule change paved the way for Trump’s next two Supreme Court appointments, despite the contentious Supreme Court hearings that followed. Brett Kavanaugh assumed his post with a 50-48 vote, and Barrett’s vote was 52-48.United States Senate, “Roll Call Vote 115th Congress - 2nd Session, Vote Summary, Question: On the Nomination (Confirmation Brett M. Kavanaugh, of Maryland, to be an Associate Justice of the Supreme Court of the United States),” senate.gov, October 6, 2018, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1152/vote_115_2_00223.htmUnited States Senate, “Roll Call Vote 116th Congress - 2nd Session, Vote Summary, Question: On the Nomination (Confirmation: Amy Coney Barrett, of Indiana, to be an Associate Justice of the Supreme Court of the United States),” senate.gov, October 26, 2020, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1162/vote_116_2_00224.htm Both those new justices were also leading members of the Federalist Society who frequently gave lectures on its behalf.
These successes did not cause McConnell to ease up. Toward the end of Trump’s term, bringing the possibility of a Democrat in the White House, McConnell personally began lobbying older federal judges to retire so they could be replaced with like-minded ones in case Trump lost.Carl Hulse, "McConnell Has a Request for Veteran Federal Judges: Please Quit," nytimes.com, March 16, 2020, https://www.nytimes.com/2020/03/16/us/politics/mcconnell-judges-republicans.html He also broke yet another Senate precedent by continuing to confirm judges after Election Day, apparently to fulfill his 2020 motto of “leave no vacancy behind.”"Biden’s Appointment Opportunities," brookings.edu, January 22, 2021, https://www.brookings.edu/blog/fixgov/2021/01/22/trumps-last-minute-judicial-appointments-impact-on-norms-and-on-bidens-appointment-opportunities/Dahlia Lithwick and Tobias Barrington Wolff, "Mitch McConnell Is Cranking Out Lame-Duck Judges," slate.com, December 17, 2020, https://slate.com/news-and-politics/2020/12/mitch-mcconnell-lame-duck-judges.html See also: Madison Alder, "Trump, GOP Defy Precedent with Lame Duck Judicial Appointees (1)," news.bloomberglaw.com, November 18, 2020, https://news.bloomberglaw.com/us-law-week/trump-gop-defy-precedent-with-lame-duck-judicial-confirmationsMitch McConnell, "McConnell on Hugh Hewitt," republicanleader.senate.gov, February 11, 2020, https://www.republicanleader.senate.gov/newsroom/press-releases/mcconnell-on-hugh-hewitt
By the end of his presidency, Trump had appointed 245 federal judges to lifetime appointments.U.S. Courts, "Judgeship Appointments by President," uscourts.gov, accessed on July 4, 2022, https://www.uscourts.gov/sites/default/files/apptsbypres.pdf
ABA Qualification Ratings of Judicial Appointees
The qualifications of the judges that McConnell ushered through the Senate have come under scrutiny. While McConnell once argued that assessing a candidate's qualifications should be the only factor in selecting a Supreme Court justice, partisanship and the nomination of candidates identifying as strict constructionistsStrict constructionism is a theory that limits the interpretation of legal and constitutional language to the literal meaning of the language at the time of passage. See: Ballotpedia, "Strict Constructionism," ballotpedia.org, accessed on July 7, 2022, https://ballotpedia.org/Strict_constructionism became as important as qualifications in Trump's picks.Mitch McConnell, “Haynsworth and Carswell: A New Senate Standard of Excellence,” uknowledge.uky.edu, 1970, https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2660&context=kljThe Federalist Society, “Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference,” fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahnTyler Olsen, "How Mitch McConnell Playing ‘Long Game’ Shaped the Supreme Court and Led to the End of Abortion Landmark Roe," foxnews.com, June 29, 2022, https://www.foxnews.com/politics/mitch-mcconnell-dark-lord-shaped-supreme-court-led-end-abortion-landmark-roe
The Senate confirmed eight Trump judges who were rated “not qualified” by the American Bar Association (ABA), the most by a president since the ABA began issuing ratings in 1953.Ballotpedia, “ABA Ratings During the Trump Administration,” ballotpedia.org, accessed on July 4, 2022, https://ballotpedia.org/ABA_ratings_during_the_Trump_administrationPaul Brennan, "Grassley Celebrates as the Senate Confirms Another Trump Judicial Nominee Rated ‘Not Qualified’," littlevillagemag.com, December 12, 2018, https://littlevillagemag.com/grassley-celebrates-as-the-senate-confirms-another-trump-judicial-nominee-rated-not-qualified/ Two other nominees who were also rated “not qualified” later withdrew.Ballotpedia, “ABA Ratings During the Trump Administration,” ballotpedia.org, accessed on July 4, 2022, https://ballotpedia.org/ABA_ratings_during_the_Trump_administration
Trump is also the only recent president to nominate any person to the appellate courts with a "not qualified" ABA rating. The circuit courts are widely seen as the most important lower courts and a stepping stone to the U.S. Supreme Court. It’s possible that his Democratic predecessors do not have unqualified ratings for their nominees because they used the ABA for vetting and simply withdrew nominees that were recommended as unfit. The ABA reportedly rejected 14 of Obama’s 185 nominees as unqualified, but since that took place prior to a public nomination, their names and subsequent ratings were never disclosed, and the nominations did not go forward.Charlie Savage, "Ratings Shrink President’s List for Judgeships," nytimes.com, November 22, 2011, https://www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html Biden, however, is not using the ABA to vet his nominees, and none so far have been rated as “not qualified.”American Bar Association, "Standing Committee on the Federal Judiciary: Ratings of Article II and Article IV Judicial Nominees - 117th Congress," americanbar.org, June 21, 2022, https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/webratingchart-117.pdf
The Trump administration argued that its judicial picks were unfairly categorized as "not qualified," noting that several of the poor ratings were only because the nominees did not have 12 years of experience.Beth A. Williams, "National Review Op-Ed: The Myth of the Unqualified Trump Judge," justice.gov, June 23, 2020, https://www.justice.gov/opa/blog/national-review-op-ed-myth-unqualified-trump-judge A Clinton appointee, David Hamilton, was also rated “not qualified” because he lacked the 12 years of experience.American Bar Association, "Statement of Robert P. Watkins Standing Committee on the Federal Judiciary American Bar Association Concerning the Nomination of David F. Hamilton to Be Judge of the United States District Court for the Southern District of Indiana Before the Committee of the Judiciary United States Senate September 21, 1994," americanbar.org, accessed on July 4, 2022, https://www.americanbar.org/content/dam/aba/administrative/federal_judicary/hamilton.pdf He served as a federal district court judge, and later was nominated by Obama to the 7th Circuit with a “well qualified” ABA rating.Jenner & Block, "Gray Speaks at Investiture Ceremony of Seventh Circuit Judge David Hamilton," jenner.com, May 3 2010, https://jenner.com/library/news/324 A Vox legal writer concluded that Trump’s judicial bench included “some of the smartest, and most ideologically reliable, men and women in the conservative movement.”Ian Millhiser, "What Trump Has Done to the Courts, Explained - Vox," vox.com, September 29, 2020, https://www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges
The chart below shows the number of judges a president appointed that were deemed "not qualified" by the ABA since ratings began in 1953, ordered from most "not qualified" to least. Presidents not listed did not name judges who were not qualified.
The charts below show the percentage of well qualified, qualified, and not qualified judicial nominations made by each president since Richard Nixon for the appellate courts and district courts. For the appellate courts, 5.6% of Donald Trump’s nominees were rated “not qualified,” while every other president since Ronald Reagan had 0.0%. For the district courts, 2.9% of Trump’s nominees were “not qualified,” along with 1.3% of Bill Clinton’s nominees, and 1.5% of George W. Bush’s nominees. The other presidents listed had zero nominees rated “not qualified.”
Click or hover over any of the sections in the bar graphs to see the percentages for each category.
Conclusion
The conservative shift orchestrated by McConnell in the most powerful federal courts in the U.S. will have an impact for decades. Justice Thomas, in a concurring opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, suggested the Supreme Court should review its prior rulings that affirmed gay rights, gay marriage and the right to contraception.Supreme Court of the United States, "19-1392 Dobbs v. Jackson Women’s Health Organization," supremecourt.gov, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf Other decisions in 2022 marked wins for the conservative movement in areas such as gun rights, religious rights, and limits on environmental regulations.Michael Macagnone, "Supreme Court Conservatives Flex in Term Full of Controversial Cases," rollcall.com, June 30, 2022, https://rollcall.com/2022/06/30/supreme-court-conservatives-flex-in-term-full-of-controversial-cases/
The day before the Dobbs decision overturning abortion rights, the Supreme Court also overturned a New York lawSupreme Court of the United States, "20-843 New York State Rifle & Pistol Assn., Inc. v. Bruen," supremecourt.gov, June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf that required anyone who carried a handgun in public to first get a permit, concluding the law violated the Second Amendment. Beyond gun control and abortion, the conservative shift was apparent in Supreme Court rulings that limited the ability of the government to regulate climate change and allowed a high school football coach to pray at public school games. The New York Times wrote that the most recent Supreme Court term was, by one measure, the most conservative since 1931.Adam Liptak, "A Transformative Term at the Most Conservative Supreme Court in Nearly a Century," nytimes.com, July 1, 2022, https://www.nytimes.com/2022/07/01/us/supreme-court-term-roe-guns-epa-decisions.html
“No one should be confident that this majority is done with its work,” the liberal dissenters in the Dobbs case wrote, noting that the only reason the Supreme Court reversed a five-decade precedent was “because the composition of this Court has changed.”Supreme Court of the United States, "19-1392 Dobbs v. Jackson Women’s Health Organization," supremecourt.gov, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Despite President Biden’s successful nomination of Ketanji Brown Jackson, 51, to the Supreme Court in April 2022, the Court still has a conservative majority, with three liberals and six conservatives.Laura Bronner and Elena Mejía, “The Supreme Court’s Conservative Supermajority Is Just Beginning To Flex Its Muscles,” fivethirtyeight.com, July 2, 2021, https://fivethirtyeight.com/features/the-supreme-courts-conservative-supermajority-is-just-beginning-to-flex-its-muscles/ and Madeleine Carlisle, “Ketanji Brown Jackson Confirmed to the Supreme Court, Becoming the First Black Woman Justice in U.S. History,” time.com, April 7, 2022, https://time.com/6165169/ketanji-brown-jackson-confirmed-supreme-court/ It would only lose that majority if both the Court’s oldest justices, Clarence Thomas, 73, and Samuel Alito, 72, stepped down and were replaced by liberals. That does not seem likely anytime soon, given that the average age of the four most recent justices who either died or retired was 82.5. Antonin Scalia was 79 when he died; Ruth Bader Ginsburg was 87; Anthony Kennedy retired at 81 and Stephen Breyer retired at 83.Trump’s picks are significantly younger: Kavanaugh is 57, Gorsuch is 54, and Barrett is 50.
That is the context in which the McConnell blockade of Merrick Garland, and his role in the speedy confirmation of Amy Coney Barrett to replace Ruth Bader Ginsburg, must be viewed. Mitch McConnell used his political power to hold as many judicial openings as possible during Obama's presidency, and sought to fill those openings with conservative nominees under President Trump. The result of that plan is already on display in recent rulings, and will continue to reverberate in the coming years.Priyanka Boghani, "How McConnell’s Bid to Reshape the Federal Judiciary Extends Beyond the Supreme Court," pbs.org, October 16, 2020, https://www.pbs.org/wgbh/frontline/article/how-mcconnell-and-the-senate-helped-trump-set-records-in-appointing-judges
Appendix A. Process of Becoming a Federal Judge
The U.S. Constitution does not set out specific requirements to become a federal judge. Traditionally, when there is a vacancy—usually due to a sitting judge stepping down, or when Congress creates a new position—the president nominates a replacement. This is true for all federal judges, no matter the seat.United States Courts, “FAQs: Federal Judges,” uscourts.gov, accessed on July 4, 2022, https://www.uscourts.gov/faqs-federal-judges
The president’s choice must be confirmed “with the advice and consent” of the Senate. In practice, all names are first sent to the Senate Judiciary Committee, which holds a hearing, before a full Senate vote.
Since 1953, the American Bar Association’s 15-member Standing Committee on the Federal Judiciary has submitted independent evaluations of Article III judicial nominees to the Senate Judiciary Committee, evaluating only their professional qualifications, not “philosophy, political affiliation or ideology.”American Bar Association, "Standing Committee on the Federal Judiciary: What it is and How it Works, American Bar Association," americanbar.org, 2020, https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/backgrounder-9-21-2020.pdf The ABA’s ratings today are “well qualified,” “qualified,” or “not qualified.” Article III judgeships include those on the Supreme Court, district and circuit courts.
The non-partisan process includes confidential interviews with at least 40 of the nominee’s colleagues, as well as a review of their legal writings, and any disciplinary issues. Nominees are also questioned and given the opportunity to respond to any adverse findings. If an evaluator finds the nominee “not qualified,” then a second review takes place and both reports are sent to the full Standing Committee. On rare occasions, the evaluator may find the nominee qualified, but the full committee may disagree. In those cases, a second review occurs. The final rating is based on a majority vote of the Standing Committee.American Bar Association, “ABA Standing Committee of the Federal Judiciary: Frequently Asked Questions,” americanbar.org, November 2019, https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/faqs-fjc-2019.pdf?logActivity=true
In 2001, President George W. Bush halted the practice of giving the ABA the names of nominees before they were selected, a practice that Trump followed.Adam Liptak, "White House Ends Bar Association’s Role in Vetting Judges," nytimes.com, March 31, 2017, https://www.nytimes.com/2017/03/31/us/politics/white-house-american-bar-association-judges.html Biden has also decided not to use the ABA for pre-nomination vetting so he can speed up his judicial nominations. The ABA continues to rate nominees, however, but only after the names are public.Ballotpedia, “ABA Ratings of Presidential Federal Judicial Nominees,” ballotpedia.org, accessed on July 4, 2022, https://ballotpedia.org/ABA_ratings_of_presidential_federal_judicial_nominees
The Federalist Society, a group of conservatives and libertarians founded in 1982 to reform “the current legal order,” became the vetting arm for Trump’s Republican federal judges.The Federalist Society, “About Us,” fedsoc.org, accessed on July 4, 2022, https://fedsoc.org/about-us While many say that Trump outsourced the nomination process to the Federalist Society, Don McGahn, former White House Counsel under Trump, said that was misleading. “We didn’t tap into the network. We are the network,” he declared in 2019.The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn [Learn more about the Federalist Society in Appendix C.]
The unlikely marriage of Trump and the Federalist Society was cemented when he agreed to publicize a list of conservative judges he would name to the Supreme Court if elected. Leonard Leo, Federalist Society executive vice president, served as Trump’s unofficial judicial advisor, continuing a role he had with George W. Bush.Robert O'Harrow Jr. and Shawn Boburg, "A Conservative Activist’s Behind-the-Scenes Campaign To Remake the Nation’s Courts," washingtonpost.com, May 21, 2019, https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/ The list was Trump’s idea; the names came from Leo.Jeffrey Toobin, "The Conservative Pipeline to the Supreme Court," newyorker.com, April 10, 2017, https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
Trump needed the conservative support, and the conservatives wanted his reassurances that he would support their priority to get judges who supported their ideology on the bench. “The establishment of the list reassured a lot of skeptical Republicans on the inside, and then by the fall, on the outside,” McConnell said, “and became the single biggest issue to bringing our side in line behind him and allowed him, in part, to win the election.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
Appendix B. Judicial Appointments by President
The charts below show the total number of federal judge appointments and the number of appellate court judge appointments made by each president since Ronald Reagan. Donald Trump had a higher number of appointments in his one term than the average per term for any two-term president listed.
The chart below shows the number of judges confirmed during Donald Trump’s presidency and Mitch McConnell’s run as majority leader. Nearly one-third of the circuit court judges were appointed by Trump.
The chart below shows the number of appellate and district court nominees made by Barack Obama during his second term and by Donald Trump during his one term, and what percentage were confirmed. Mitch McConnell was Senate minority leader during Obama's first term (111th and 112th Congresses - not shown below) and the first half of his second term (113th Congress - shown below dimmed out). McConnell became Senate majority leader for the 114th-116th Congresses.
Appendix C. The Federalist Society
Having the once-obscure Federalist Society play such a significant role in judicial selections has made it “a household name,” McGahn joked at a 2019 Federalist Society event at the Reagan Library. He said Democrats had long thought it a “secret club, plotting who knows what. Now it’s an anomaly not to be a member.”The Federalist Society, "Judicial Nominations in the Trump Administration: A Conversation with Senate Majority Leader McConnell and Former White House Counsel Don McGahn, 2019 Kentucky Chapters Conference," fedsoc.org, October 7, 2019, https://fedsoc.org/conferences/2019-kentucky-chapters-conference?#agenda-item-judicial-nominations-in-the-trump-administration-a-conversation-with-senate-majority-leader-mcconnell-and-former-white-house-counsel-don-mcgahn
The Society began in 1982 when conservative law students held a conference at Yale to counter liberal ideas in law classes. They quickly attracted conservative funders and support from prominent conservative law professors, including Bork and Scalia, who then became federal judges. They also earned the attention of Reagan’s Attorney General, Edwin Meese, who began hiring them for good legal jobs in Washington, according to Suffolk University law professor Michael Avery, who co-authored "The Federalist Society: How Conservatives Took the Law Back from Liberals."PBS, "Supreme Revenge: Michael Avery, Co-Author, The Federalist Society: How Conservatives Took the Law Back from Liberals," pbs.org, January 24, 2019, https://www.pbs.org/wgbh/frontline/interview/michael-avery Meese is still on the Federalist Society board of directors.
Avery said he uses the acronym M-A-I-N to think about the Federal Society. It stands for “money, access, ideas and network, and they were very successful on all those fronts.”PBS, "Supreme Revenge: Michael Avery, Co-Author, The Federalist Society: How Conservatives Took the Law Back from Liberals," pbs.org, January 24, 2019, https://www.pbs.org/wgbh/frontline/interview/michael-avery
Over the years, the Federalist Society has grown significantly, and now counts 70,000 lawyers, law students, scholars and others as members. Among them are five members of the Supreme Court: Trump’s three new associate justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, plus Clarence Thomas and Samuel Alito. Chief Justice John Roberts said during his 2005 confirmation process that he had no memory of belonging to the Federalist Society, but he was listed in its 1997-1998 directory and he has participated in some of the organization's activities.Charles Lane, "Roberts Listed in Federalist Society '97-98 Directory," washingtonpost.com, July 25, 2005, https://www.washingtonpost.com/archive/politics/2005/07/25/roberts-listed-in-federalist-society-97-98-directory/07462c8a-f148-4b4f-97f5-b44cfc3c1333/
It reported more than $31 million in assets to the IRS in 2020, the most recent filing available.Internal Revenue Service (IRS), "Form 990 Return of Organization Exempt From Income Tax, 2019 - The Federalist Society for Law and Public Policy Studies - The Federalist Society," irs.gov, 2019, https://apps.irs.gov/pub/epostcard/cor/363235550_202009_990_2021042718015715.pdfProPublica, "Nonprofit Explorer: Federalist Society for Law & Public Policy Studies," projects.propublica.org, accessed on July 5, 2020, https://projects.propublica.org/nonprofits/organizations/363235550
But that may be just the tip of an iceberg of influence. The Washington Post reported in 2019 that Federalist Society executive vice president Leonard Leo had collected more than $250 million in hard-to-trace dark money “used in part to support conservative policies and judges, through advertising and through funding for groups whose executives appeared as television pundits.”Robert O'Harrow Jr. and Shawn Boburg, "A Conservative Activist’s Behind-the-Scenes Campaign To Remake the Nation’s Courts," washingtonpost.com, May 21, 2019, https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
To Leo, a devout Catholic and former appellate law clerk who is friendly with Justice Thomas, federal judicial confirmations are now “more like political campaigns.”Jeffrey Toobin, "The Conservative Pipeline to the Supreme Court," newyorker.com, April 10, 2017, https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court Robert O'Harrow Jr. and Shawn Boburg, "A Conservative Activist’s Behind-the-Scenes Campaign To Remake the Nation’s Courts," washingtonpost.com, May 21, 2019, https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
The Post total did not include the Rule of Law Trust, which lists Leo as a trustee, according to IRS returns the Trust filed in 2020, a year after the newspaper report.Internal Revenue Service (IRS), "Form 990 Return of Organization Exempt From Income Tax, 2019 - Rule of Law Trust," irs.gov, 2019, https://apps.irs.gov/pub/epostcard/cor/831047727_201912_990O_2021121719343097.pdf The Trust, which formed in 2018 with $80 million in revenue, paid a $1.5 million consulting fee to former Federalist Society executive Jonathan Bunch in 2019, as well as $4.3 million to the BH Group, a company owned in part by Leo. It has a mission “to advance conservative principles and causes through communications, research, strategy and assistance to other organizations.” The BH Group also donated $1 million to Trump’s inaugural committee in December 2016.Robert Maguire, "Secret Contributions to Trump's Inauguration Become a Bonanza for Event Planners," opensecrets.org, March 14, 2018, https://www.opensecrets.org/news/2018/03/secret-contributions-to-trump-inauguration
The BH Fund, another group that lists Leo as its president and Bunch as its treasurer, gave $6 million to the Judicial Crisis Network in 2019, according to the BH Group’s 2019 tax return, the most recent available.Internal Revenue Service (IRS), "Form 990 Return of Organization Exempt From Income Tax, 2019 - BH Fund," irs.gov, 2019, https://apps.irs.gov/pub/epostcard/cor/811263832_201912_990O_2022011919482405.pdf The Judicial Crisis Network has been described as “the predominant dark money spender in Supreme Court confirmation fights as a vehicle for deep-pocketed donors to funnel millions of dollars behind or against judicial nominees.”Anna Massoglia, "Trump Judicial Adviser’s ‘Dark Money’ Network Hides Supreme Court Spending," opensecrets.org, January 2, 2020, https://www.opensecrets.org/news/2020/01/supreme-court-wellspring-committee-stry-2020/ It is run by Federal Society member and former Clarence Thomas law clerk Carrie Severino.Zach C. Cohen, "Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network: NJ50 Profile," nh50.nationaljournal.com, accessed on July 4, 2022, https://nj50.nationaljournal.com/carrie-severino/
To blunt the impact of the Federalist Society, progressives in 2001 created the American Constitution Society, but its funding pales in comparison. ACS reported $8.1 million in revenue in 2019, according to its most recent IRS filing.Internal Revenue Service (IRS), "Form 990 Return of Organization Exempt From Income Tax, 2019 - American Constitution Society for Law and Policy," irs.gov, 2019, https://apps.irs.gov/pub/epostcard/cor/522313694_201912_990_2021040217866021.pdf ACS names its major sponsors on its website, including George Soros’ Open Society Foundation, the JPB Foundation, the William and Flora Hewlett Foundation, several large law firms, advocacy groups, unions, and others.American Constitutional Society, "Supporters," acslaw.org, accessed on July 4, 2022, https://www.acslaw.org/about-us/supporters/
In the wake of Watergate, the Federal Election Commission and Congress enacted restrictions on campaign finance, including the 2001 Bipartisan Campaign Reform Act, to add transparency and limit the influence of big money in politics, such as the dark money that has increasingly funded judicial advocacy campaigns.Ballotpedia, "Bipartisan Campaign Reform Act," ballotpedia.org, accessed on July 4, 2022, https://ballotpedia.org/Bipartisan_Campaign_Reform_Act
Conservatives believe that the First Amendment does not allow the government to impose any restrictions on speech, and they fought to overturn an FEC ruling that limited corporate campaign spending. The Supreme Court ruled in their favor in 2010 in a 5-4 opinion (Citizens United v. FEC) that has led in part to the explosion of dark money now fueling the Federalist Society’s goals of making the courts more conservative.Lisa Graves, “Testimony of Lisa Graves, President of the Center for Media and Democracy Before the United States Senate Committee on the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights - ‘What's Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary’," judiciary.senate.gov, March 10, 2021, https://www.judiciary.senate.gov/imo/media/doc/Final_CMD_Lisa%20Graves_Written%20Testimony%20for%20March%2010%202021%20Subcommittee%20Hearing1.pdf
McConnell led efforts to overturn the 2001 Bipartisan Campaign Reform Act for decades.Federal Election Commission, "McConnell v. FEC," fec.gov, accessed on July 4, 2022, https://www.fec.gov/legal-resources/court-cases/mcconnell-v-fec/ The Court has struck down parts of it and upheld others. In December 2021, McGahn, back in private practice, was lead counsel for McConnell in an amicus brief they submitted to the Supreme Court in a campaign finance lawsuit brought by Senator Ted Cruz.Supreme Court of the United States, “Federal Election Commission v. Ted Cruz for Senate and Senator Rafael Edward 'Ted' Cruz,” supremecourt.gov, December 22, 2021, https://www.supremecourt.gov/DocketPDF/21/21-12/206152/20211222125801433_21-12%20merits%20tsac%20McConnell.pdf The Supreme Court ruled in Cruz's favor in May 2022.Supreme Court of the United States, “Federal Election Commission v. Ted Cruz for Senate,” supremecourt.gov, May 16, 2022, https://www.supremecourt.gov/opinions/21pdf/21-12_m6hn.pdf McGahn opposes limits on campaign spending, which led to his obstructionist tenure as a commissioner and chair of the Federal Election Commission.Nancy Cook, "He's Going to Be an Enabler," politico.com, February 21, 2017, https://www.politico.com/magazine/story/2017/02/trump-mcgahn-white-house-lawyer-214801/
Appendix D. Details on "Not Qualified" Judges Appointed by Trump
As noted in Section VI above, the Trump administration argued that its judicial picks were unfairly categorized by the American Bar Association (ABA) as unqualified, noting that several of the poor ratings were due to the nominees not having at least 12 years of experience.Beth A. Williams, "National Review Op-Ed: The Myth of the Unqualified Trump Judge," justice.gov, June 23, 2020, https://www.justice.gov/opa/blog/national-review-op-ed-myth-unqualified-trump-judge
Below are details on the eight federal judges appointed by Trump who received unqualified ratings from the ABA but who were confirmed by the Senate for lifetime appointments.
- Holly Lou Teeter, nominated to the U.S. District Court for the District of Kansas on August 3, 2017.Ballotpedia, “Holly Lou Teeter,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Holly_Lou_Teeter Born in 1979,Harsh Voruganti, "Holly Lou Teeter – Nominee for the U.S. District Court for the District of Kansas," vettingroom.org, October 16, 2017, https://vettingroom.org/2017/10/16/holly-lou-teeter she was deemed unqualified because she did not have enough trial experience.
- Charles B. Goodwin, nominated to the U.S. District Court for the Western District of Oklahoma on January 8, 2018.Ballotpedia, “Charles B. Goodwin,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Charles_B._Goodwin While the ABA had no issue with Goodwin's "judicial temperament, intellectual capacity, writing and analytical abilities, knowledge of the law, or breadth of professional experience," they did have concerns about “his work ethic,” noting he was often missing from the courthouse where he worked as a magistrate until mid-afternoon.Noted in a December 12, 2017, letter from Nancy Scott Degan, former chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Charles E. Grassley and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Hearing on December 13, 2017 regarding the Nomination of Magistrate Judge Charles B. Goodwin to the United States District Court for the Western District of Oklahoma The Senate confirmed him by a 52-42 vote on August 28, 2018.Ballotpedia, “Charles B. Goodwin,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Charles_B._Goodwin
- Sarah E. Pitlyk, nominated to the U.S. District Court for the Eastern District of Missouri on September 9, 2019.Ballotpedia, "Sarah Pitlyk," ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Sarah_Pitlyk The ABA concluded she did not have enough trial or litigation experience, noting she had never tried a case as lead counsel, examined a witness, taken a deposition, or even argued a motion in court.Noted in a September 24, 2019, letter from William C. Hubbard, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Lindsay Graham and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Sarah E. Pitlyk to the United States District Court for the Eastern District of Missouri A former appellate clerk to now-Associate Justice Kavanagh, she was confirmed by the Senate on December 4, 2019, by a 49-44 vote.Ballotpedia, "Sarah Pitlyk," ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Sarah_Pitlyk
- Justin R. Walker, nominated to the U.S. District Court for the Western District of Kentucky on June 24, 2019.Ballotpedia, “Justin Walker,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Justin_Walker The ABA determined that Walker lacked the requisite trial or litigation experience for the position, noting that he has never tried a case as a lead or co-counsel.Noted in a July 30, 2019, letter from Paul T. Moxley, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Lindsay Graham and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Justin R. Walker to the United States District Court for the Western District of Kentucky He was confirmed by the Senate on October 24, 2019, with a 50-41 vote.Ballotpedia, “Justin Walker,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Justin_Walker McConnell spoke at his investiture.Todd Ruger, "Judge Justin Walker Is a Window Into McConnell’s Sway on Federal Courts," rollcall.com, April 17, 2020, https://rollcall.com/2020/04/17/judge-justin-walker-is-a-window-into-mcconnells-sway-on-federal-courts On April 11, 2020, Walker granted a restraining order against the city of Louisville on behalf of a group called On Fire, which wanted to have in-person Easter services during the pandemic, even though the city banned them. Notable for its Christian rhetoric, the ruling concluded: “But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, ‘it isn’t a matter of reason; finally, it’s a matter of love,’” he wrote.On Fire Christian Center, Inc., v. Greg Fischer, et al., Civil Action No. 3:20-CV-264-JRW, Temporary Restraining Order Days earlier, Trump had announced his intention to nominate Walker for a seat on the powerful D.C. Appellate Court,Alliance for Justice, “Nomination of Justin Walker: U.S. Court of Appeals for the D.C. Circuit,” feinstein.senate.gov, 2020 and did so on May 4, 2020; this time, the ABA determined he was “well qualified.”Noted in a May 5, 2020, letter from William C. Hubbard, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Lindsay Graham and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Justin Reed Walker to the United States Court of Appeals for the District of Columbia Circuit He was confirmed on June 18, 2020, by a 51-42 vote.Ballotpedia, “Justin Walker,” ballotpedia.org, accessed on August 1, 2022, https://ballotpedia.org/Justin_Walker A former clerk to both Kavanaugh and Kennedy, and a “star in the Federalist Society,” he had known McConnell since high school and was just 37 when he became a federal judge.Phillip M. Bailey, "5 Things To Know About Judge Justin Walker and His Backing by Sen. Mitch McConnell," courier-journal.com, May 5, 2020, https://www.courier-journal.com/story/news/politics/2020/05/05/whos-judge-justin-walker-and-why-sen-mitch-mcconnell-backing-him/3083961001/
- Jonathan Kobes, nominated to the U.S. Court of Appeals for the Eighth Circuit on June 7, 2018.Ballotpedia, “Jonathan Kobes,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Jonathan_Kobes The ABA wrote that Kobes lacked the requisite experience to undertake the role successfully and could not “provide sufficient writing samples” to show that he could do the job.Noted in a September 14, 2018, letter from Paul T. Moxley, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Charles E. Grassley and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Jonathan A. Kobes to the United States Court of Appeals for the Eighth Circuit Kobes, who was general counsel to Republican Senator Mike Rounds, was confirmed on December 11, 2018, by a 50-50 vote, with then-Vice President Mike Pence breaking the tie.Ballotpedia, “Jonathan Kobes,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Jonathan_Kobes
- Leonard Steven Grasz, nominated to the U.S. Court of Appeals for the Eighth Circuit on August 3, 2017, and confirmed with a 50-48 vote on December 12, 2017.Ballotpedia, “Steven Grasz,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Steven_Grasz The ABA’s seven-page statement on why he was not qualified concluded that he was rude and so politically connected that people were afraid of reprisal for talking about him. The ABA reviewers found several instances in which his “passionately-held social agenda appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment.”Pamela A. Bresnahan, "Statement of Pamela A. Bresnahan on Behalf of the Standing Committee on the Federal Judiciary, American Bar Association, Concerning the Nomination of Leonard Steven Grasz To Be Judge of the United States Court of Appeals for the Eighth Circuit, Before the Committee on Judiciary, United States Senate," americanbar.org, October 30, 2017.
- Kathryn Kimball Mizelle, nominated to the U.S. District Court for the Middle District of Florida on September 8, 2020.Ballotpedia, “Kathryn Kimball Mizelle,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Kathryn_Kimball_Mizelle She was 33, had clerked for Justice Clarence Thomas, and was working at Jones Day, the firm where McGahn ran the government relations practice.Jones Day, “Donald F. McGahn II (Don), Practice Leader Government Relations,” jonesday.com, accessed on August 4, 2022, https://www.jonesday.com/en/lawyers/m/donald-mcgahn?tab=overview The ABA said Mizelle lacked experience, noting she had only been admitted to practice law in 2012, nor had she ever tried a civil or criminal case as lead or co-counsel.Noted in a September 8, 2020, letter from Randall D. Noel, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Lindsay Graham and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Kathryn Kimball Mizelle to the United States District Court for the Middle District of Florida She was confirmed with a 49-41 vote on November 18, 2020, after Trump lost the election.Ballotpedia, “Kathryn Kimball Mizelle,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Kathryn_Kimball_Mizelle She overturned Biden’s mask mandate on federal transportation in April 2022 in a controversial opinion; the administration has appealed.Health Freedom Defense Fund, Inc., et al., v. Joseph R. Biden, Jr., et al., Case Number: 8:21-cv-1693-KKM-AEP
- Lawrence VanDyke, nominated to the U.S. Court of Appeals for the 9th Circuit on October 15, 2019.Ballotpedia, “Lawrence VanDyke,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Lawrence_VanDyke The ABA interviewed 60 lawyers and judges and determined that VanDyke’s accomplishments were undercut by his behavior, “Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules. There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful,” their report said.Noted in an October 29, 2019, letter from William C Hubbard, chair of the Standing Committee on the Federal Judiciary of the ABA, to Senators Lindsay Graham and Dianne Feinstein, in their roles as Chairman and Ranking Member respectively, Re: Nomination of Lawrence J.C. VanDyke to the United States Court of Appeals for the Ninth Circuit Confirmed with a 51-44 vote on December 11, 2019,Ballotpedia, “Lawrence VanDyke,” ballotpedia.org, accessed on August 4, 2022, https://ballotpedia.org/Lawrence_VanDyke VanDyke has since written several controversial judicial opinions dubbed “bonkers” by The New Republic.Matt Ford, “The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America,” newrepublic.com, January 31, 2022, https://newrepublic.com/article/165169/lawrence-vandyke-judge-ninth-circuit-appeals-trump-bonkers-opinions