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Mitch McConnell, Judicial Activist

The Senate minority leader seeks majority opinions.

Apr 28, 2014, Vol. 19, No. 31 • By TERRY EASTLAND
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Members of both parties have taken the amicus route—Democratic senator Sheldon Whitehouse, for example, joined John McCain in an amicus filing (at odds with McConnell’s position) in American Tradition Partnership. Still, Democratic members of Congress are not as active in filing amicus briefs as Republican members are, perhaps because Republicans see more opportunities to advance their legal views in the cases the Court accepts—
views on the structural Constitution and on the First Amendment and the liberties they were written to protect. Certainly McConnell, who now has participated in at least 20 cases during his last 20 years in the Senate, making him probably the Senate’s most frequent filer of amicus briefs, has an eye out for the strategic case. 

As for whether the justices read the members’ amicus briefs, McConnell has wondered about that himself,
and has heard conflicting answers. But he is encouraged that the justices have given his lawyer argument time in Citizens United, McCutcheon, and Noel Canning, an indication, he says, that they’re paying attention.

McConnell is looking forward to the balance of the term, and would delight in a victory in each of the four cases he and his colleagues have entered, but especially in Noel Canning, the recess appointment clause case. As he explains, “It would be a pretty big brushback pitch against a president who has rather expansive views of what he can do across the board.”

Terry Eastland is an executive editor at The Weekly Standard.

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