Andrew Wolfson

Louisville Courier Journal

A young Mitch McConnell wrote in a 1970-71 law journal article that politics should play no role in Senate confirmations of Supreme Court appointments and that the Senate should defer to the president.

“The president is presumably elected by the people to carry out a program and altering the ideological directions of the court would seem to be a perfectly legitimate part of a presidential platform,” wrote McConnell, the chief legislative aide to Sen. Marlow Cook.

“To that end, the Constitution gives to him the power to nominate.”

But an hour after the announcement of Justice Antonin Scalia’s death last week, McConnell said the Senate should not confirm a replacement until a new president is elected, prompting a national debate over the powers of a sitting president.

That debate has prompted people on both sides of the issue to examine past comments that seem inconsistent with current stands. For instance, many Republicans highlighted comments of Sen. Chuck Schumer, D-N.Y., who said in 2007 that he would advise not giving President George W. Bush a confirmation vote on anyone he might nominate to the Supreme Court before his term ended in 2009. But now, he's critical of McConnell’s stand on court nominations.

Writing in the Kentucky Law Journal years ago, McConnell did not address nominations by lame duck presidents, but he said: “Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it would not be successfully argued that this is an acceptable practice.

“After all, if political matters were relevant to senatorial consideration it might be suggested that a constitutional amendment be introduced giving to the Senate rather than the president the right to nominate Supreme Court justices,” he said.

Responding for McConnell, the Senate majority leader, spokesman Robert Steurer said in an email this week that the senator's article "was not about nominations made by a lame duck president for vacancies that didn’t arise until an election year. What he said on Saturday was that he believes the American people‎ should have a voice in the selection of their next Supreme Court justice and that this vacancy should not be filled until we have a new president, not that the president can’t nominate someone."

The deputy chief of staff for Senate Democratic leader Harry Reid, Adam Jentleson, said: "As the self-proclaimed 'proud guardian of gridlock,' Sen. McConnell's primary aim has always been obstruction at all costs, regardless of principle or merits. It's sad but unsurprising that he rashly staked out a position of knee-jerk opposition in this case. The only good news is that his position is unsustainable, as evidenced by the contradictions with his own record, and he will be forced to back down."

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McConnell wrote the article after the Senate, in 1969 and 1970, rejected Republican President Richard Nixon’s nominations of Clement Haynsworth Jr. and G. Harrold Carswell.

McConnell’s boss, U.S. Sen. Marlow Cook, led the fight for the nomination of Haynsworth, which was rejected because of questions about his judicial ethics and views on minorities. Cook cast one of the decisive votes against Carswell.

Writing under the name A. Mitchell McConnell Jr., the legislative aide said political considerations arguably figured in the defeat of those nominees and others in the 19th century “but this is not proper and tends to degrade the court and dilute the constitutionally proper authority of the Executive in this area.”

Asking what standards the Senate should employ in reviewing nominees, McConnell wrote, “At the outset, the Senate should discount the philosophy of the nominee.”

He also quoted Cook, who died this month, saying the “ideology of the nominee is the responsibility of the president. The Senate’s judgment should be made, therefore, solely upon the grounds of qualifications.”

McConnell himself said the Senate should consider only the qualification of a nominee – whether the person is competent, has attained some level of accomplishment or distinction, has a good temperament, violated no existing ethical standards, and has a clean record off the bench.

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“It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate,” he said.

“However, it is suggested that the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Republicans have argued that Democrats forever politicized the Supreme Court nomination process when they ganged up to defeat the 1987 nomination of federal appeals court Judge Robert Bork, who was considered highly qualified but whose ideology was attacked by civil rights organizations, women’s groups and other liberals.

Defending Bork's nomination, McConnell said in October that year that “I think the best standard for the Senate to adopt is to leave the philosophy to the president and to make certain that we get men and women as nominees up here who are men and women of conspicuous achievement, those who have published, those who have achieved great distinction in their fields, in the field of law, in the field of endeavor."

Reporter Andrew Wolfson can be reached at (502) 582-7189 or awolfson@courier-journal.com.