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Judgment Days for Judicial Nominees

Several factors will affect schedule for Senate confirmation of judges

The Republican president and Senate have a chance to reshape the judicial branch, but several factors will determine how things stack up . (Bill Clark/CQ Roll Call)
The Republican president and Senate have a chance to reshape the judicial branch, but several factors will determine how things stack up . (Bill Clark/CQ Roll Call)

Senators face a lengthy list of President Donald Trump’s judicial picks, but consideration of the nominees could be affected by three significant factors: an extensive backlog of vacancies, Republican leaders’ willingness to continue altering chamber traditions, and the Democrats’ lack of motivation to aid GOP efforts to remake the judiciary.

The backlog

There are 121 vacancies at the U.S. District Court level and an additional 21 vacancies on federal appeals courts, according to the Administrative Office of the U.S. Courts.

Before the Columbus Day recess, the Senate Judiciary Committee cleared four judicial picks, sending them to the floor. That put the sum total of judges awaiting confirmation on the chamber’s executive calendar at eight.

Judiciary will hold a confirmation hearing on five more judicial nominations Tuesday and could hold committee votes soon on four additional District Court judges.

Blue-slipping away?

Meanwhile, a chamber protocol intended to afford senators input on who gets picked for lifetime appointments to the bench is on the ropes as GOP leaders have indicated a willingness to ditch so-called blue-slip courtesies.

Those allow a nominee’s home-state senators to sign off or withhold support. In the past, nominees lacking blue slips from both state senators were typically not advanced. It is a tradition intended to bring in the opinions of senators and foster a bipartisan approach.

But in a recent interview with The Weekly Standard, Senate Majority Leader Mitch McConnell said the lack of notice will be seen “as simply notification of how you’re going to vote, not as an opportunity to blackball.”

McConnell doubled down on that position Monday during a press conference at the White House with Trump. 

“My view is that a blue slip on a circuit judge is simply a notification of how you’re going to vote. To conclude otherwise would’ve left us in the following position at the beginning of this Senate: 48 Democratic senators would’ve been able to blackball 62 percent of the circuit judge nominees.
That’s simply not a tenable place to land in a Senate that now deals with judges on the — with a simple majority,” the majority leader said.

Judiciary ranking member Dianne Feinstein has raised concerns that the panel’s chairman, Charles E. Grassley, may abandon the tradition in order to advance Trump’s picks.

In May, Grassley indicated he could give more deference to Democrats on district court judges than circuit court nominees. 

“I think the blue slip is more respected for district court judges historically than it has been for circuit,” the Iowa Republican said on C-SPAN’s “Newsmakers” program.

On Monday at the White House, McConnell gave Grassley some running room, saying his blue-slip position “is my own personal view” and the long-honored tradition “is a custom determined by the chairman of the Judiciary Committee. And Sen. Grassley can give you his view of how he views it.”

Trump didn’t seem to care. 

“We could talk blue slips, but my attitude is I just want really capable people going to the courts,” he said.

Sen. Patrick J. Leahy was the top Democrat on Judiciary for many years, but passed the baton this Congress to become vice chairman of the Appropriations Committee. He remains on the Judiciary panel and is not too pleased with stories of a possible change.

“While I was chairman no judicial nominee — district court or circuit court — received a hearing without the committee first receiving both home state senators’ favorable blue slips,” Leahy said in a statement. “I maintained this policy during both Republican and Democratic administrations, even in the face of significant pressure from within my party to abandon it.”

Leahy also said he believed Grassley would respect the blue-slip process, adding, “I trust him to keep his word.”

Nuclear option deterrence

The possibility the blue-slip courtesy would go away comes on the heels of a further deterioration in Senate tradition this year on how it considers judicial nominees.

That happened when McConnell pushed through a rules change to get rid of the 60-vote filibuster threshold for Supreme Court nominees, paving the way for the chamber to confirm Neil Gorsuch. 

That effort built off a similar 2013 rules change for district and appellate nominees spearheaded by then-Senate Majority Leader Harry Reid, a move referred to as the nuclear option.

That change in Senate precedent followed years of battles over judicial appointments. Republican leader Bill Frist threatened to change the rules in 2005, accusing Democrats of blocking President George W. Bush’s picks for federal benches.

The roles were reversed during President Barack Obama’s time in the White House, when it was Reid’s turn to be frustrated by the minority’s delay tactics. On Nov. 21, 2013, backed by most of his conference, he effectively eliminated the 60-vote requirement for cloture on most nominations, except those to fill Supreme Court vacancies.

Reid got to work quickly and filed more and more cloture petitions to limit debate on Obama nominations. But there was fallout as it factored into GOP electoral strategies to take back the chamber.

When McConnell eliminated the 60-vote precedent to shut off debate on Supreme Court picks in April, it removed the last big piece of procedure that required bipartisan support for presidential nominations. 

Uncertain path

Despite the nuclear changes, Republicans fume that their Democratic colleagues are obstructing Trump’s agenda by slow-walking confirmations. Democrats counter that they are simply ensuring debate and exercising their rights.

There’s not much legislation to fill the floor, anyway. 

Earlier this month, frustrated with requirements to file cloture motions to cut off debate on many Trump nominations, McConnell said he shouldn’t have to do so on picks that seem to have wide support.

“I filed cloture motions on four qualified nominees for various agencies throughout the federal government. I shouldn’t have had to,” McConnell said on the floor. “In different times, we may have even considered them via voice vote. But this is where we are, and now it’s time to advance and confirm them as soon as possible.”

The procedural change hasn’t allowed the party in charge to move as fast as its conference would like. It can still take multiple days to confirm each nominee under the cloture procedure to limit debate, even with the lower threshold — typically 51 when all 100 senators participate.

And Democrats continue to use those rules to consider most nominees one at a time. They have not allowed any of Trump’s judicial picks to bypass procedural hurdles in committee or on the floor.

Trump and McConnell are in a position to reshape the federal judiciary, particularly since the majority leader let several judicial nominees, most notably Judge Merrick G. Garland for the Supreme Court, linger throughout the last two years of the Obama administration. 

Trump and McConnell already take credit for Gorsuch’s elevation to the high court, and the Senate has approved six other judges to fill lifetime positions on certain federal benches.

But that doesn’t mean Democrats will make things easy. 

Brandon Haas contributed to this report.

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