New battle lines in war over Trump’s judicial picks

The Senate is adding new fuel to the fire in its long-running feud over President TrumpDonald John Trump5 things to know about Boris Johnson Conservatives erupt in outrage against budget deal Trump says Omar will help him win Minnesota MORE’s judicial nominations.

The battle intensified this past week, with multiple fault lines. Republicans moved forward with more than 40 picks, including several circuit nominees who were not supported by home-state senators.

ADVERTISEMENT

GOP senators are also expected to advance a rules change Wednesday that would cut down on the amount of time it takes to confirm many of Trump’s nominees, including district judges.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGrassley, Wyden reach deal to lower drug prices The Hill's Morning Report — Trump applauds two-year budget deal with 0 billion spending hike Harris, Nadler introduce bill to decriminalize marijuana MORE (R-Ky.) and other Republicans view judicial nominations as a top priority and their best shot at leaving a long-term impact on the direction of the country. The GOP-controlled Senate confirmed a record number of circuit court picks during Trump’s first two years in office.

Democrats, meanwhile, are fuming over the GOP maneuvers, arguing Republicans are ignoring the “blue slip" tradition and souring relationships on the Judiciary Committee, where tensions are still palpable following the brutal, months-long fight over Supreme Court Justice Brett KavanaughBrett Michael KavanaughTrump pays respects to late Justice Stevens at Supreme Court McConnell challenger faces tougher path after rocky launch Lindsey Graham's Faustian bargain MORE.

“We are unilaterally disarming the Senate Judiciary Committee in a way that will have collateral damage well beyond the immediate goal of packing the courts with these nominees in a great rush,” said Sen. Sheldon WhitehouseSheldon WhitehouseDemocrats look to capitalize on turmoil inside NRA Overnight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief Watchdog probing more ethics investigations into EPA's former air chief: report MORE (D-R.I.), a member of the committee.

The acrimony spilled into onto the Senate floor recently when Sens. John CornynJohn CornynTrump, Democrats clinch two-year budget deal Overnight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief Bipartisan senators fight 'political considerations' in EPA's new FOIA rule MORE (R-Texas) and Mazie HironoMazie Keiko HironoDems open to killing filibuster in next Congress Overnight Defense: Woman accusing general of sexual assault willing to testify | Joint Chiefs pick warns against early Afghan withdrawal | Tensions rise after Iran tries to block British tanker Joint chiefs nominee: Trump's transgender policy about 'standards' MORE (D-Hawaii), who are both members of the panel, traded barbs over Neomi Rao’s nomination to fill the vacancy on the D.C. Circuit Court of Appeals created by Kavanaugh’s ascension to the Supreme Court.

ADVERTISEMENT

Cornyn said Rao faced “unconvincing attacks” during her Judiciary Committee hearing and that Democrats were targeting her because she was viewed as a potential Supreme Court nominee.

“I guess, when you consider what happened to Brett Kavanaugh, at least we moved on from high school yearbooks now to things that somebody has written in college. I don't know whether that represents progress or not,” he said.

Hirono fired back, saying members of the Judiciary Committee shouldn’t “cast aspersions on the motives of those of us who ask probing questions of judicial nominees for lifetime positions.”

The battle lines on judicial nominations stretch back years. Republicans blame Democrats for nixing the 60-vote filibuster in 2013 for most nominations, labeling that as the spark that started the fire. Democrats are still bitter over the decision to block Judge Merrick GarlandMerrick Brian GarlandDem senators demand GOP judicial group discloses donors John Legend: Republicans play to win, Biden plays to impress the media Biden says he opposes expanding the Supreme Court MORE, former President Obama’s Supreme Court nominee, from getting a hearing or a vote in 2016.

Sen. Dianne FeinsteinDianne Emiel FeinsteinOvernight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief Bipartisan senators fight 'political considerations' in EPA's new FOIA rule Top Democrats demand security assessment of Trump properties MORE (D-Calif.), the ranking member on the Judiciary Committee, told CNN that feelings on the Democratic side of the aisle are still “a little raw” in the wake of the Garland fight.

The renewed tensions come as Sen. Lindsey GrahamLindsey Olin GrahamGraham says he will call Papadopoulos to testify GOP group defends Mueller ahead of testimony The Hill's Morning Report — Mueller Time: Dems, GOP ready questions for high-stakes testimony MORE (R-S.C.), who is up for reelection in 2020, has taken over as chairman of the high-profile Judiciary Committee. He won over conservatives last year when he exploded at Democrats during the hearing for sexual assault allegations against Kavanaugh, who has consistently denied the accusations against him.

Graham appeared to extend an olive branch during a committee meeting Thursday, telling Democrats he wants the panel to be as “bipartisan as possible” and floated that he was mulling a resolution to go back to 60 votes on judicial nominations after 2020.

He also pledged that he will work with Democrats to make sure they don’t “throw up” over the Trump administration’s picks for circuit court nominees for their home states, telling White House hopeful Sen. Cory BookerCory Anthony BookerBooker takes swipe at Biden criminal justice reform plan Democrats, advocacy groups urge Pompeo to abolish new 'unalienable rights' commission Biden announces plan to counteract mass incarceration MORE (D-N.J.) that he would get a meeting with Paul Matey, nominated for the 3rd Circuit, before his nomination receives a floor vote.

“I will get in a room with you when it comes time for circuit court nominations and see if we can find a compromise with the White House,” Graham said. “I’m going to do this by the golden rule.”

He added during a Federalist Society event this past week that he worries “a lot about what’s coming.”

“If you don’t have to reach across the aisle to get any votes, judges are going to be just more ideological than they would be otherwise,” Graham said.

At the heart of the fight over Trump’s judicial picks is the decision by Graham and Sen. Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley, Wyden reach deal to lower drug prices Overnight Energy: Senators push back on EPA's new FOIA rule | Agency digs in on rule change | Watchdog expands ethics probe of former EPA air chief Bipartisan senators fight 'political considerations' in EPA's new FOIA rule MORE (R-Iowa), the previous committee chairman, to move forward with circuit court picks even when home state senators don’t return their “blue slip.”

The blue-slip rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.

But how strictly the precedent is upheld is decided by the committee chairman, and enforcement has fluctuated depending on who wields the gavel.

Feinstein tried, unsuccessfully, to delay the four circuit court nominees who didn’t have blue slips, arguing Republicans were breaking with tradition and that it would further fracture the committee. But Republicans, who hold a 12-10 majority on the panel, advanced the nominees to the full Senate.

“If what happens is what I think is going to happen, you’re going to get four circuit court judges and the divide is going to increase on this committee,” she said. “You know what comes up, comes down.”

Whitehouse warned that Republicans moving away from the blue slip protocol for circuit court picks could further escalate the fight the over the appeals courts. He also asked why Democrats should recognize seats as belonging to specific states when they take back power in the Senate.

“I’m going to be really hard pressed to say when there’s a South Carolina seat that comes up on your circuit … and there’s a Democratic president and we have the majority that we should consider anybody from South Carolina for that seat,” Whitehouse said to Graham. “Why should we? You’ve got nothing to say because you’ve got no blue slip left.”

There are other fights looming that will test their ability to work together, including Trump’s three nominations for California-based seats on the 9th Circuit Court of Appeals. Feinstein and Sen. Kamala HarrisKamala Devi HarrisPoll: Biden leads 2020 Democratic field by 15 points, followed by Sanders and Warren Democrats, advocacy groups urge Pompeo to abolish new 'unalienable rights' commission Biden announces plan to counteract mass incarceration MORE (D-Calif.), a Judiciary Committee member who is running for president, are opposing the picks.

Harris even went a step further by pledging to oppose any of Trump’s circuit court picks until they work out a better system for nominating judges, a move that earned her praise from progressive groups.

The Senate Rules Committee is also scheduled to vote on a resolution Wednesday that would dramatically cut down the amount of time it takes to confirm hundreds of Trump’s nominees. Currently, a nominee faces 30 hours of debate after they’ve overcome an initial hurdle and showed they have the simple majority they need to be confirmed.

But a proposal from GOP Sens. James LankfordJames Paul LankfordOvernight Defense: House approves 3 billion defense bill | Liberal sweeteners draw progressive votes | Bill includes measure blocking Trump from military action on Iran Senators urge Trump to sanction Turkey for accepting Russian missile shipment Acosta on shaky ground as GOP support wavers MORE (Okla.) and Roy BluntRoy Dean BluntGOP wants commitment that Trump will sign budget deal Poll: McConnell is most unpopular senator Senate passes bill making hacking voting systems a federal crime MORE (Mo.) would cut debate time from 30 hours to as little as two hours for district judges and most executive nominees. Supreme Court nominees, circuit court picks and nominees for roughly a dozen boards and commissions would still be subject to the full 30 hours.

Republicans have fumed for years about the slow pace of confirmation for Trump’s nominees. Their narrow 51-49 majority during the previous Congress left them unable to use the “nuclear option” to force through the rules change with only a simple majority.

Now, with a 53-47 majority, GOP senators say going “nuclear” is back on the table. McConnell didn’t tip his hand after a recent closed-door caucus lunch but vented about Democrats treatment of Trump’s court picks.

“As I've said before, there is time for obstruction; I've engaged in it myself. It depends on what you're obstructing,” he told reporters. “If it's something big and important, understandable. If you're just trying to throw sand in the gear so the administration can't function, unacceptable."