NEW RULES FOR AN OLD GAME
Mitch McConnell Just Brought Scott Pruitt Protégé Patrick Wyrick One Big Step Closer to a Seat on the Supreme Court
McConnell isn’t just envisioning a federal bench firmly on the right to steer the country for generations to come; he’s racing to seat its judges.
What Mitch McConnell lacks in charisma, he more than makes up for with steely discipline. With little fanfare, he pushed through a change in Senate rules last week to reduce the time for debate on certain judicial nominees and executive branch appointees from 30 hours to just 2 hours.
The poster child for why McConnell orchestrated the rules change is Patrick Wyrick, 38, a District Court nominee from Oklahoma who was on one of the lists President Trump circulated to conservatives of potential Supreme Court nominees, and who is Scott Pruitt’s protégé. Wyrick was confirmed under the new rules Tuesday on a party-line vote, 53 to 47.
Remember Scott Pruitt? He was Trump’s EPA administrator, one of the swampiest denizens. He was forced to resign amidst allegations of conflicts of interest with the oil and gas industry in his home state of Oklahoma, where he was attorney general before Trump tapped him for the EPA.
Wyrick was Pruitt’s number two, serving as solicitor general and doing most of the heavy lifting in oral arguments in court as the attorney general worked to undermine environmental protections in the state and challenge the constitutionality of the Affordable Care Act.
He has only been on the Oklahoma Supreme Court for two years, and now he’s on his way to a lifetime federal appointment. No wonder McConnell didn’t want anybody talking about Wyrick for 30 hours. The New York Times brought to light in 2014 emails between Pruitt and Devon Energy Corporation as it pressed for relief from an EPA rule on methane emissions, with Wyrick acting as the go-between. The Times story—Energy Firms in Secretive Alliance With Attorneys General—was not focused on Wyrick, but his name showed up in at least 11 email chains.
In one exchange, Wyrick changed just 37 words in a 1,016-word letter drafted by Devon’s chief lobbyist, stamped it with the seal of Oklahoma, and sent it to the EPA. Questioned about the emails in a Senate hearing last May, Wyrick shrugged off any appearance of coziness between the AG’s office and the energy company. He said he was just passing the information along.
Republicans are now putting nominees forward in groups of four, which restricts senators in their ability to probe any one nominee. Wyrick was part of such a panel, which meant that each senator had just five minutes for questioning. The GOP chairman of the Senate judiciary committee gave Democrat Sheldon Whitehouse a few extra minutes to probe how Wyrick got on the Oklahoma state supreme court despite a flap over whether he resided in the Western sector of the state he is supposed to represent. The controversy hinged on an interpretation of “resided” versus “lived.”
But those five minutes barely scratched the surface of the questions about Wyrick. Documents provided by the environmental group, Earthjustice, show that he failed to disclose to the committee that he is a registered agent for his wife’s health-care industry company, and that he failed to recuse himself from the state’s challenges to the Affordable Care Act.
Tuesday afternoon, not quite a year after his hearing, the Senate confirmed Wyrick along with three other Trump nominees, the first direct beneficiaries of McConnell’s changed rule.
Whitehouse called Wyrick’s record “an ethical dead zone” after the hearing, listing claims there was no way to cover in five minutes before a vote for a lifetime appointment:
“He built his career serving as a go-between for fossil fuel interests and disgraced polluter errand boy Scott Pruitt when he served in Oklahoma government. He gave false statements before the Supreme Court—not a small foul for any lawyer. He failed to disclose his role in his wife’s health care venture after telling me—under oath—he had nothing to do with it. And he said he met the residency requirements to run for Oklahoma’s Supreme Court when official records say otherwise. Mr. Wyrick shouldn’t be anywhere near confirmation to the federal bench.”
There will be indirect benefits of McConnell’s rule change as well. The most valuable commodity in the Senate is floor time. To the extent he saves time by limiting debate, the majority leader can ram through more judges and hasten his stated legacy, and that of the president’s, to remake the judiciary with conservative ideas and values.
“If the American people knew that Scott Pruitt’s protege in undermining environmental protections was being voted on for a lifetime seat on the federal court, they’d be outraged,” says Dan Goldberg, research director for the Alliance for Justice, a liberal advocacy group.
Thanks to McConnell, they won’t know. And they won’t see the video or watch Democrats question Wyrick about a remark he made while speaking at George Mason Law School that the “entire administrative state is unlawful.”
“If you were a litigant in his court, and you’re arguing to enforce a public protection, why would you ever think you could get a fair shake out of him?” asks Coby Dolan, senior legislative counsel with Earthjustice.
McConnell’s goal is not fairness. He envisions a federal bench firmly on the right to steer the country for generations to come. His record so far: two Supreme Court judges, 37 Court of Appeals judges, and 57 District Court judges, including two confirmed Tuesday. He took extraordinary means to deny President Obama’s Supreme Court pick, Merrick Garland, and in the last two years he’s taken numerous actions to override the Senate’s role of advise and consent.
McConnell waived the super-majority requirement for Supreme Court Justices to confirm Trump nominees Gorsuch (54 votes) and Kavanaugh (50 votes). The majority leader tightly controlled the Kavanaugh nomination, working with the White House to limit the documents available to Democrats and short-circuit the FBI investigation into allegations of sexual misconduct against Kavanaugh.
He eliminated the 100-year-old Senate tradition of having senators return “blue slips” to signal their approval of home state judges, overriding any meaningful consultation. In his zeal to rush the process, he has held hearings for judicial nominees while the Senate was in recess, something that had never been done before without the minority party’s consent.
McConnell has stopped short of eliminating the filibuster on legislation, something Trump has urged him to do. It’s the last piece of institutional dignity that McConnell hasn’t shredded, and for good reason. Trump has no legislative agenda. There is no backlog of bills Republicans that would pass with 51 votes instead of 60 votes if Democrats weren’t standing in their way.
McConnell knows that if the shoe were on the other foot, and Democrats controlled the senate along with the House, the Republicans would want that 60-vote legislative threshold back. Some Democrats, notably Elizabeth Warren, have stepped up to propose eliminating the filibuster on legislation, recognizing that in this era of super partisanship, even the party controlling the White House and both chambers of Congress, would have difficulty getting 60 votes to pass major legislation.
Progressives need government to work to enact their agenda; Republicans not so much. They’ve kept their eye on the prize, the federal judiciary, and with McConnell in place, it’s paid off.