Selecting the next Justice: the McConnell factor

The word today, for what it’s worth, is that President Trump is still undecided about whom to nominate to the Supreme Court, and that four judges are in the running. The candidates are said to be Raymond Kethledge, Brett Kavanaugh, Thomas Hardiman, and Amy Coney Barrett.

Hardiman, by the way, was said to be Trump’s second choice when he nominated Neal Gorsuch. He served with the president’s sister on the Third Circuit, and she apparently recommended Hardiman for the Supreme Court. Thus, I was a bit surprised that Hardiman reportedly was only a second tier candidate this time around. Now, however, he is said to be in the top tier.

I think any of these jurists would be a good nominee. Some might be slightly better than others, but I don’t know enough to identify them.

For me, the key is selecting a confirmable nominee from among this stellar group. To do so, it’s worth considering the views of the man who will spearhead the confirmation battle, Majority Leader Mitch McConnell.

According to this report in the New York Times, McConnell has told Trump that Kethledge and Hardiman present the fewest obvious obstacles to being confirmed. McConnell reportedly believes that Barrett might encounter resistance from Sens. Susan Collins and Lisa Murkowski because she is an outspoken social conservative who some observers believe may be more amenable than others on the short list to overturning Roe v. Wade.

Kavanaugh might present different challenges. His role in the George W. Bush administration and in the Ken Starr investigation has generated millions of pages of documents. Senate Democrats would demand to see every one them. This could stall the nomination, making it impossible to confirm Kavanaugh before the Supreme Court begins its next term and maybe before the mid-term elections.

There’s also the matter of what these documents might reveal. It’s highly unlikely that they include a smoking gun that would sink Kavanaugh. However, given the contentiousness of the Starr wars and the Bush years, it would be understandable if McConnell didn’t to relitigate those times.

Finally, there’s the Rand Paul problem. McConnell’s Kentucky colleague hated Bush’s foreign policy and aspects of his domestic agenda. He’s also said to be upset about Kavanaugh’s opinion in the Obamacare mandate litigation. If Paul signaled to McConnell that he won’t vote to confirm Kavanaugh, it’s understandable that the Majority Leader would prefer another nominee.

Given the uncertainty over which party will control the Senate come January, the White House simply can’t afford failure in the coming confirmation struggle. If McConnell thinks he’d have trouble getting particular nominees confirmed, his concern should be taken seriously.


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