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Trump’s Chance to Fill Lower Court Vacancies Rest on Bipartisanship

Grassley is eager to begin processing judicial nominations

Senate Judiciary Chairman Charles E. Grassley is waiting for President Donald Trump to nominate more judges for lower court posts. (Bill Clark/CQ Roll Call file photo)
Senate Judiciary Chairman Charles E. Grassley is waiting for President Donald Trump to nominate more judges for lower court posts. (Bill Clark/CQ Roll Call file photo)

With Justice Neil Gorsuch safely ensconced on the Supreme Court, the Trump administration now needs to focus on more than a hundred open federal court seats. 

Of those, 48 vacancies are considered judicial emergencies. But according to statistics maintained by the administrative office of the federal courts, only one nominee has been put forward by the White House so far.

That’s Judge Amal Thapar of Kentucky, nominated by President Donald Trump for elevation to the 6th U.S. Circuit Court of Appeals, based in Cincinnati.

Senate Judiciary Chairman Charles E. Grassley said he is ready to begin processing nominees for the lower-level lifetime judicial appointments, but in a conversation with reporters last week, he said the onus is on the White House to send up names for consideration.

“We can’t do anything the White House doesn’t do, and I don’t know whether they’re geared up to do what it takes to get 127 [positions] filled,” the Iowa Republican said.

Grassley said the administration still has a couple of months to beat the pace set by Trump’s predecessors.

“If they get them up here before June, they’ll actually be doing it better than [George W. Bush] or Obama did,” he said.

The White House did not respond to multiple requests for comment for this story about the process of making judicial nominations and the vetting of federal judges.

Presidents often pick judges from recommendations by home-state senators, who use different methods such as bipartisan panels and other advisory groups to review candidates. How much of a voice members of the minority party (the Democrats, in this case) have in the process can vary from state to state.

“[Presidents] also have a problem with some senators maybe reaching agreement within their states,” Grassley said. “Members of the Senate shouldn’t have a hard time suggesting names to, at least Republican members shouldn’t have a tough time suggesting names to a Republican White House.”

Conservative radio host Hugh Hewitt has been pushing for the Senate GOP to jettison the traditional blue slip process under which both home state senators need to grant consent before the Judiciary Committee will even schedule a nomination hearing.

In a Tuesday opinion piece for The Washington Post, Hewitt called the practice “anti-democratic.”

“The blue slip isn’t a law, and it would be anathema to the framers. It’s a leftover of decades past, a means by which individual senators could control their region’s judicial future,” he wrote. “There is no reason in the Constitution or common sense that voters from Michigan, which went for Trump, closely divided Virginia or even deep-blue New York should be denied judges because they have two senators that don’t like Trump’s nominees.”

Grassley said last week that he does not view the blue slip as totally sacrosanct.

“There’s always been some exceptions to it, but we’re committed to it,” he said of the blue slips.

But bipartisanship will be key to getting many of those judges through. Grassley noted that even though only a simple majority of senators are needed to limit debate on each judge, the Senate’s rules and precedents still give significant tools to senators seeking to object. If Democrats slow things down, Majority Leader Mitch McConnell would be forced to spend considerable floor time getting judges confirmed.

“It depends upon if we have to have the 30-hour rule for every one of the district court judges. We’ll have more vacancies than we have right now,” Grassley said.

Trump also needs to nominate replacements for the wave of U.S. attorneys whose resignations were abruptly accepted earlier in the year, and cooperation from Democrats will be important to managing the floor schedule for those confirmations as well.

The timeline for getting through the Judiciary Committee will be somewhat less problematic, as the same delaying tools used for judges are not used for the U.S. attorney slots.

“Since we don’t have a hearing on U.S. attorneys and marshals, that’s pretty much the White House [and] how fast are they operating,” Grassley said. “And we don’t even hold over U.S. attorneys and marshals the one week like we do on judges.”

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