WASHINGTON – Halfway through her first year in the U.S. Senate, Arizona Republican Martha McSally is proving to be what she campaigned as last year: a party loyalist, at least when it comes to the GOP’s efforts to reshape the federal judiciary.
Since taking office in January, McSally – regarded as a moderate during her four years in the U.S. House of Representatives – has voted for every judicial nominee who has received an up-or-down vote on the Senate floor, according to Quorum, a public affairs software company.
That brings her total votes for President Trump’s nominees to district and circuit courts to 39, a streak that Democrats are already using against her in their effort to deny her a full term in 2020.
“Week after week, Martha McSally keeps voting to give lifetime appointments to judges who share her record of siding with corporate special interests over people and fighting against Americans’ health care access,” said Brad Bainum, a spokesman for the Arizona Democratic Party. He called her a “rubber stamp” who hands out lifetime appointments to “seemingly anyone, no matter how dangerous their views.”
McSally’s office did not respond to a request for comment.
The freshman senator, who represented Arizona’s 2nd District from 2015 to 2019, ran a failed Senate bid last year against Democratic Sen. Kyrsten Sinema. But McSally was able to enter the Senate in January anyway, thanks to an appointment in December by Republican Gov. Doug Ducey. He tapped her to replace GOP Sen. Jon Kyl, who filled the seat temporarily after Sen. John McCain died.
McSally is now regarded as one of the Senate’s most vulnerable members facing re-election in 2020, according to the Cook Political Report, a nonpartisan political newsletter. Democrat Mark Kelly, a retired astronaut and the husband of ex-Rep. Gabby Giffords – the Arizona Democrat who was shot in the head in 2011 – is running against her.
Democrats see an opportunity to use McSally’s record on judicial nominees to tie her to Trump – whose disapproval rating in the state is higher than his approval rating – and to distinguish her from McCain, a popular Republican who was well known for his political independence.
Democrats are also using her record on judges to paint her as a threat to health care. To do so, they are pointing to her votes for judges like Matthew Kacsmaryk, now on the Northern District Court of Texas; Michael Truncale of the Eastern District Court of Texas; and Howard Nielson of the District Court of Utah. All won Senate approval this spring, despite strong opposition from Democrats and a couple of Republicans.
GOP Sen. Susan Collins, a self-styled moderate from Maine, voted against Kacsmaryk, in part because of his hostility to reproductive health. She also voted against Nielson, who has sought to strike down the Affordable Care Act (ACA), including its protections for people with preexisting conditions (a cause McSally has said she supports). Truncale drew opposition from GOP Sen. Mitt Romney of Utah for making disparaging comments about former President Barack Obama and from progressives for his calls to repeal the ACA and defund Planned Parenthood.
Dan Goldberg, legal director at the Alliance for Justice, also flagged McSally’s support for Chad Readler, a judge on the 6th U.S. Circuit Court of Appeals. Last year, Readler – then working for the Trump administration – filed a brief in support of GOP efforts to strike down the ACA, including its protections for people with pre-existing conditions.
“She cannot go before the people of her state and say she supports protecting people with preexisting conditions, cancer survivors, people with diabetes, pregnant women, and then turn around and support … someone who led the effort at the Justice Department to declare the ACA unconstitutional and take away people’s health care,” Goldberg told the Arizona Mirror.
Barbara Norrander, a professor of government and public policy at the University of Arizona, said McSally’s support for Trump’s nominees is to be expected. “What has made judicial appointments more partisan over the past few decades is less support from senators of the opposition party,” she said. “So McSally’s record is typical of the other Republican senators.”
Indeed, most Republican senators have lined up behind the president’s lower-level judicial nominees, while Democratic senators have often voted against them. Sinema sometimes joins the opposition, voting against Kacsmaryk, Truncale, Nielson, Readler, and 12 other judicial nominees so far this year, according to Quorum. But she has also voted for 19 others, votes that have helped make her one of the most likely Democratic senators to split with her party.
While little legislation has made its way through the GOP-controlled Senate this year, the pace of judicial nominations – which don’t require approval from the Democratic-held House – is speeding up. Republicans have confirmed 123 judicial nominees (including two Supreme Court justices) since Trump took office. That’s 34 more than President Obama had gotten through at the same point in his administration.
Senate Majority Leader Mitch McConnell (R-Ky.) credits progress to a rules change he engineered that has allowed his party to confirm certain nominees “in a fraction of the time it would have otherwise taken.” The effort is paying off, he told an anti-abortion group earlier this month. “I think that’s the way we have the longest impact on our country, and the most positive way into the future.”
Norrander said voters aren’t likely paying much attention to the party’s efforts to stack the lower courts – or the degree to which senators participate in it.
“Voters will more likely have a general impression of whether or not McSally has supported President Trump,” she said. “It is this general impression of support for President Trump that may influence the vote for Martha McSally in the 2020 Senate election.”
But Marge Baker, executive vice president at People for the American Way, a progressive advocacy group, says voters are beginning to pay more attention to lower-level judges. “I think there’s a greater awareness” of the impact that they have on American life, she said. People are beginning to understand how much the courts affect “kitchen table” issues, she said.