Joseph Gerth

Opinion Columnist | Louisville Courier Journal

U.S. Sen. Majority Leader Mitch McConnell says he won't move forward on the nomination of Kentucky Supreme Court Justice Lisabeth Tabor Hughes to the federal 6th Circuit Court of Appeals.

The move comes as McConnell and President Barack Obama are locked in a bitter struggle over the president's nomination of Merrick Garland to the U.S. Supreme Court to replace Justice Antonin Scalia, who died Feb. 13.

McConnell has pledged not to allow so much as a hearing on the Garland nomination, which Obama made on Wednesday. McConnell called Garland, the chief of the Court of Appeals for the District of Columbia Circuit, on the phone and told him that he would not even meet with him in person.

In a statement, McConnell's office said that Obama did not consult with McConnell before announcing the nomination of Hughes late Thursday.

"Leader McConnell tried to work with the White House to fill this vacancy, including submitting a qualified Kentuckian for consideration," spokesman Robert Steurer said in a statement. "Rather than work with him to fill this vacancy, they submitted Justice Hughes without even notifying Leader McConnell. He will not support action on this nomination."

U.S. Rep. John Yarmuth, D-Louisville, criticized McConnell saying that his actions are "just typical obstructionism on his part by trying to run the clock out. ... I think it's a dereliction of duty."

He went on to say that McConnell is overstepping his authority. "He said he had a candidate that he preferred. Well that’s pretty presumptuous, that’s not his prerogative," Yarmuth said. "He doesn’t name the judges."

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McConnell's office declined to comment on who that potential nominee is, but Louisville lawyer Sheryl Snyder said that he believes McConnell is backing U.S District Judge Amul Thapar, of Covington, whom McConnell sponsored to be U.S. Attorney in the Eastern District in 2006 and then for his appointment to the federal trial bench in 2007.

The appellate court seat in Louisville was left vacant in August 2013 when Boyce Martin retired. It took two and a half years for Obama to even offer up a nominee, which could indicate that Obama and McConnell couldn't agree on a replacement.

Obama has appointed four members to the 6th Circuit – two from Michigan and two from Tennessee – since he was sworn in. But he and McConnell haven't been able to come to an agreement on federal judges in Kentucky other than a 2014 package deal that brought David J. Hale, a Louisville Democrat, and Greg Stivers, a Bowling Green Republican, to the bench in the Western District of Kentucky.

In addition to Martin's seat, a seat on the federal trial court in Kentucky that is split between the Eastern and Western districts has been vacant since Jennifer Coffman retired in January 2013, and John G. Heyburn’s seat in the Western District has been vacant since he took senior status in 2014. Heyburn died last April.

Hughes, who until a recent divorce used the surname Abramson, sat on the Jefferson Circuit Court before she was appointed to the state court of appeals by Gov. Ernie Fletcher in 2006. She was elevated by him to the state high court a year later.

Snyder, who spoke to the FBI when it was vetting Hughes, said he's disappointed that McConnell has nixed the nomination but said he believes it's part of the ongoing politicization of the federal court system.

"I think it's unfortunate to extend the politicizing of judicial nominations to now include the Court of Appeals, and particularly a nominee as eminently qualified as Lisabeth Hughes," he said.

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Snyder said he couldn't speak to whether Obama was playing political games – appointing Hughes without advance notice and seeking to fill the seat with someone from McConnell's hometown just a day after the majority leader announced that his Supreme Court choice was dead on arrival.

"I don't know what communications they did or did not have, I just know Justice Hughes was being vetted by the justice department several months ago. I believe she actually met with Sen. McConnell at one point ... but I think it is a fair point to say that the judicial nominating process has been politicized since the nomination of Abe Fortas in 1968. It's just that it keeps getting worse because it keeps getting escalated by both sides."

President Lyndon B. Johson nominated Fortas, a sitting justice to be the chief justice, but that nomination was blocked in part because Fortas was seen as being too close to Johnson.

Carl Tobias, a law professor at the University of Richmond who follows the federal court system closely, said that while Hughes appears to be qualified for the court, her nomination may simply be the victim of lame-duck politics.

Normally, a president will clear appointments to the federal court with senators from their home states before he makes an appointment, but sometimes they stray from that policy in their final year in office.

"All presidents at the ends of their terms make those kind of appointments, sometimes without the support of the senators from their home state," he said. "I think Obama has done everything he can for almost every nomination to this point to ensure careful consultation with the home state senators and not send people without their support. It's only this year that he's sort of been forced to go forward without their support. He did not do that the first seven years."

Whatever the reason, Tobias said the people of Kentucky are paying a price. "I think it's just McConnell's view that he's not going to work that closely with the White House, so it just punishes people in Kentucky who want to have their day in court. You lose representation, for example, on the 6th Circuit, which Kentucky wants."

Reporter Joseph Gerth can be reached at (502) 582-4702 or jgerth@courier-journal.com.