Senate Majority Leader Mitch McConnell is pushing for Judge Ray Kethledge to be President Donald Trump’s nominee for the Supreme Court vacancy opened by the retirement of Justice Anthony Kennedy, Breitbart News has learned.
McConnell has, in private conversations, said he is pushing Trump to pick Kethledge for the slot because he thinks Kethledge’s positions in contravention of the GOP base on certain issues like immigration would make him an easily-confirmed nominee in an election year.
“McConnell has said he does not want a SCOTUS battle in an election year,” one source briefed on McConnell’s comments to a variety of people around Washington, including at least one journalist whom the Senate Majority Leader spoke with off the record ahead of Monday’s announcement. “He thinks Kethledge would be easy to confirm because Kethledge is not a consistent conservative.”
McConnell’s argument, per sources who have heard him make it directly, is that Kethledge is non-controversial and would not face the same problems in the Senate confirmation process—meaning he would rather not have to fight than have a nominee with fewer questions about his or her conservative positions.
The Times’ Maggie Haberman and Jonathan Martin reported late Saturday:
Senator Mitch McConnell, the Republican leader, told President Trump this past week that Judges Raymond M. Kethledge and Thomas M. Hardiman presented the fewest obvious obstacles to being confirmed to replace Justice Anthony M. Kennedy on the Supreme Court, according to Republican officials briefed on the conversation. While careful not to directly make the case for any would-be justice, Mr. McConnell made clear in multiple phone calls with Mr. Trump and the White House counsel, Donald F. McGahn II, that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation. Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created in his 12 years on the United States Court of Appeals for the District of Columbia Circuit, as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.
The Times story was printed after Breitbart News reached out to McConnell spokeswoman Antonia Ferrier for comment. Ferrier responded after the Times article was posted, saying in an emailed statement: “The Leader has said publicly that he’s confident the President will select someone in the mold of Justice Gorsuch. I can’t speak to the theories of those anonymous sources.”
Ferrier has not responded to a follow-up request for further comment on a two-part question: Whether McConnell believes Kethledge is “in the mold of Justice Gorsuch,” even with the revelation that Kethledge overturned deportation orders for an illegal alien convicted of grand theft auto—a revelation exposed by bestselling author and conservative columnist Ann Coulter.
Finding that grand-theft auto is not a theft (AS LONG AS THE CRIMINAL IMMIGRANT GETS TO STAY!) kind of shoots down to the claim that Kethledge is a constitutional textualist.
— Ann Coulter (@AnnCoulter) July 6, 2018
But Judge Kethledge found that GRAND THEFT AUTO isn't "theft," so he could keep a criminal alien here. https://t.co/Zjnm9Cj7aR
— Ann Coulter (@AnnCoulter) July 6, 2018
Can anybody figure out what this "text" means? "The term 'aggravated felony' means—
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 5 least one year"— Ann Coulter (@AnnCoulter) July 6, 2018
Kethledge also reversed a deportation order of a CRIMINAL ALIEN who had lied about a drug conviction and been convicted of grand theft auto, which Kethledge argued was not an aggravated felony. Van Don Nguyen v. Holder, 571 F.3d 524 https://t.co/dldlRROKSR
— Ann Coulter (@AnnCoulter) July 4, 2018
McConnell’s push to the president, as reported by the Times, is slightly less than the full picture: He is very aggressively behind-the-scenes lobbying for Kethledge, per sources with direct knowledge – just not with the president himself.
When Trump makes his pick, whomever it might be, there is little room for error in the Senate in order to ensure confirmation. He has to ensure he does not lose more than one or two Republicans, if he is going to pick up Democrats, but he definitely cannot afford to not pick up any Democrats while losing even one Republican.
A revolt by the right wing base against any pick could be fatal to that pick’s confirmation chances, creating a divide inside the GOP where establishment Republicans or so-called moderates are on board but conservatives are not. Such a divide inside the GOP would almost certainly guarantee that no Democrats vote for whoever creates it, even the many endangered red state Democrats in battleground states that President Trump won in 2016–because said divide in the Republican Party could relieve pressure on Democrats like Sens. Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Jon Tester (D-MT), Claire McCaskill (D-MO), Bill Nelson (D-FL), and Bob Casey (D-PA), among others.
Getting zero Democrat votes would then leave the Senate Republicans with exactly no room for error. What’s to stop a Sen. Jeff Flake (R-AZ) or Sen. Bob Corker (R-TN) from voting against this nominee on their way out of office? Or how about Sen. Orrin Hatch (R-UT), the elder statesman who’s retiring, if he sees something wrong? What about Sen. Rand Paul (R-KY)? It’s been a while since he’s killed something, and this would present the perfect opportunity to do so. Without Sen. John McCain (R-AZ), who is not expected to come back to the Senate due to health issues, that puts the GOP at just exactly 50 votes. One Republican joining with all Democrats to vote no would mean failure for the nominee, and the possibility of failure is very real no matter who is nominated.
The tight-wire vote-counting act is definitely a serious exercise with any other potential nominee as well. Barrett faces questions over a not-so-in-depth legal career. Kavanaugh faces questions from pro-lifers and about Obamacare. But neither of those split Trump’s movement as vehemently as Kethledge does, and the president would be able to keep the pressure on red state Democrats and probably pick up a vote or two or three or maybe more from them—offsetting any GOP losses—if he goes that route.
In fact, West Virginia Attorney General Patrick Morrisey—the GOP nominee for U.S. Senate in that state—predicted on Breitbart News Saturday this weekend that Manchin will vote for whomever the nominee is for Supreme Court.
McConnell has also, per the Times, been lobbying directly against Barrett because she is a pro-life conservative. He is worried about losing the votes of establishment GOP Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME), despite the fact a more solid Justice nominee would probably pick up Democrats, the Times reports.
“Mr. McConnell is similarly wary of imperiling the votes of two moderate Republicans, Senators Lisa Murkowski of Alaska and Susan Collins of Maine,” Martin and Haberman wrote. “He has told Mr. Trump he could lose the two senators, who support abortion rights, if he picks another judge seen as a contender, Amy Coney Barrett, an outspoken social conservative whom some observers believe may be more open to overturning Roe v. Wade.”
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