Assessing McConnell’s Role in Judicial Confirmations

The Senate has spent much of its time in the 115th Congress confirming President Trump’s judicial nominations. Before the midterm elections, Majority Leader Mitch McConnell, R-Ky., touted his party’s record in this area as a bright spot and has since pledged to continue his efforts to remake the federal judiciary in the 116th Congress.

McConnell’s handling of the judicial confirmation process has earned him high praise from some commentators. Fred Barnes recently observed that McConnell’s tenure as majority leader highlights his “pragmatism and skill” and argued that the wily Kentuckian “allows little to get in the way of winning.” Marc Thiessen has argued that McConnell’s erstwhile conservative opponents owe the majority leader an apology based on his effort to transform the judiciary, which is a “major accomplishment.” Thiessen asserts that McConnell is “the most consequential conservative leader of the century.”

However, a closer look at the data suggests that the Senate’s record in confirming Trump’s judicial nominees is not due to McConnell’s leadership skill.

Post-Nuclear Senate

In contrast to their legislative agenda, Senate Republicans have been united when it comes to the president’s judicial nominees. Moreover, it is easier for Senate majorities to overcome a minority’s efforts to block up-or-down votes on judicial nominees. Senate minorities are no longer able to single-handedly prevent a confirmation vote for a presidential nomination after the Democrats used the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations, other than for the Supreme Court, from three-fifths of senators to a majority vote. Republicans followed suit in 2017, using the maneuver to eliminate a minority’s ability to filibuster Supreme Court nominees. Consequently, it is not hard for a united Republican majority to confirm Trump’s judicial nominees. All it requires is a decision to schedule the vote and then the vote.

Most Votes Are Bipartisan

A quick review of the Senate’s roll-call vote record reveals that most confirmation votes are bipartisan. Specifically, 49 judicial nominees received bipartisan support on the Senate floor. Only 9 nominees were confirmed on a party-line vote. If the nominees who received only one, or a handful, of Democratic votes are instead counted as partisan confirmation votes, the number rises to 20. Even then, the number of bipartisan votes is greater than the number of partisan votes.

Even with the most charitable interpretation of the data, the fact remains that the Senate is confirming most of Trump’s judicial nominees on a bipartisan basis. This suggests that McConnell’s efforts in this area are not as consequential as advertised.

This piece originally appeared in Legislative Procedure