Battle over Trump's judicial nominees enters new phase

Battle over Trump's judicial nominees enters new phase
© Stefani Reynolds - Getty Images

Senate Republicans are ramping up their efforts to confirm President TrumpDonald TrumpGOP grapples with chaotic Senate primary in Pennsylvania ​​Trump social media startup receives commitment of billion from unidentified 'diverse group' of investors Iran thinks it has the upper hand in Vienna — here's why it doesn't MORE's judicial nominees, deepening the chamber's fight over shaping the nation’s federal courts.

Republicans are moving forward on multiple fronts as they advance the president’s picks for influential appeals court seats at a record rate, despite accusations from Democrats that they are trampling over the chamber’s institutional guardrails.

At the same time, some GOP senators expect their party will soon pull the trigger on changing the rules for hundreds of lower court and executive nominees.


Republicans view judicial nominations as a top priority and their best shot at having a long-term impact on the direction of the country given the limits of divided government, as big-ticket GOP agenda items are unlikely to work their way through Congress.

“It’s one thing we can get done for sure that’s going to last a long, long, long time,” said Sen. John CornynJohn CornynHouse passes bill to expedite financial disclosures from judges McConnell leaves GOP in dark on debt ceiling Congress's goal in December: Avoid shutdown and default MORE (R-Texas), a member of GOP leadership and the Senate Judiciary Committee.

After confirming the first circuit court pick without a blue slip from either senator, Republicans are poised to advance three nominations this week over the objection of both home-state senators. On the floor, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellDemocrats livid over GOP's COVID-19 attacks on Biden US could default within weeks absent action on debt limit: analysis The Hill's Morning Report - Presented by Facebook - Congress avoids shutdown MORE (R-Ky.) has teed up a vote on Paul Matey’s nomination to serve on the 3rd U.S. Circuit Court of Appeals.

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 the blue slip to the Judiciary Committee. How strictly the precedent is upheld is decided by the committee chairman, and enforcement has varied depending on who wields the gavel.

In addition to Matey’s nomination, the Judiciary Committee will hold a hearing on Wednesday for Daniel Collins and Kenneth Lee, nominees to fill two vacant California seats on the 9th Circuit, prompting backlash from Sens. Dianne FeinsteinDianne Emiel FeinsteinWhat's that you smell in the Supreme Court? New variant raises questions about air travel mandates Progressive groups urge Feinstein to back filibuster carve out for voting rights or resign MORE (Calif.), the top Democrat on the panel, and Kamala HarrisKamala HarrisJoe Manchin should embrace paid leave — now The Hill's 12:30 Report: Biden defends disappointing jobs report Harris's office undergoes difficult reset MORE (D-Calif.), a fellow committee member who is running for the party’s 2020 presidential nomination.

The two California Democrats called on Lee to withdraw his nomination, saying in a Monday letter that his "repeated failure to provide responsive materials to this Committee is a breach of the Committee’s standards and processes — it is not a partisan issue."

Feinstein, during a Judiciary Committee hearing last week, requested a meeting with Sen. Lindsey GrahamLindsey Olin GrahamGraham emerges as go-to ally for Biden's judicial picks This Thanksgiving, skip the political food fights and talk UFOs instead Biden move to tap oil reserves draws GOP pushback MORE (S.C.), who took over as chairman this year, to discuss the blue-slip policy.

“I’ve been on this committee a long time. I’ve never been treated this way,” Feinstein said. “It’s just not right. And maybe the only way we can show it is with a ‘no’ vote.”

Use of the blue slip has emerged as a flashpoint during Trump’s presidency as several Democratic senators have refused to return their paperwork on circuit court nominees from their home states, setting up a round of fights between Democrats and the White House.

The committee sent two picks for the 2nd Circuit to the full Senate last week over the objections of Minority Leader Charles SchumerChuck SchumerHospitals in underserved communities face huge cuts in reckless 'Build Back Better' plan GOP infighting takes stupid to a whole new level Progressive groups urge Schumer to prevent further cuts to T plan MORE (D-N.Y.) and Sen. Kirsten GillibrandKirsten GillibrandEx-officials voice deep concerns over new Pentagon UFO unit Paid leave advocates ramping up the pressure on Manchin and Schumer Gillibrand, bipartisan lawmakers push to keep military justice overhaul in NDAA MORE (D-N.Y.).

Schumer has pledged to “strongly” oppose Michael Park and Joseph Bianco’s circuit court nominations, arguing they are another example of the “partisan push by Senate Republicans for hard-right nominees to get lifetime appointments on the federal bench.”

He added on Monday that Trump’s judicial nominees are “by and large ... not mainstream conservatives.”


“I know this is what my friend, the majority leader cares about — a hard-right bench. He doesn’t care about the qualifications. He doesn’t care about moderation,” Schumer said.

“He’s running a conveyor belt of political partisans, many with extremely thin legal resumes.”

The backlash over circuit court picks comes as Republicans are mulling using the “nuclear option” to reduce debate time for hundreds of Trump’s nominees, a move that would allow them to implement a significant rule change with only a simple majority.

Republicans hold a 53-47 majority in the chamber.

McConnell suggested during a press conference last week that while he would prefer to have both parties support the rule change, he is prepared for Republicans to go it alone.

“We're still hoping to have bipartisan support to go forward with the standing order, which would require 60 votes. In the absence of that, it still my desire to try to achieve that, and that's an issue we'll have — a discussion we’ll have among Republicans,” he told reporters during a weekly press conference.

The rule change would reduce the amount of debate time required after a nominee  clears the first procedural hurdle on the floor. Debate would go from 30 hours down to as little as two hours for district court picks and hundreds of executive nominees.

Supreme Court nominees, circuit court picks, Cabinet nominees and appointees for roughly a dozen independent boards would be exempt from the proposed rule change.

For example, the Senate’s upcoming consideration of Neomi Rao, Trump’s pick to fill the D.C. Circuit Court seat left vacant by Supreme Court Justice Brett KavanaughBrett Michael KavanaughGOP infighting takes stupid to a whole new level What's that you smell in the Supreme Court? The Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud MORE, would not be subject to the new rule if it’s enacted.

Sen. Roy BluntRoy Dean BluntSenate eyes plan B amid defense bill standoff The Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud GOP fears boomerang as threat of government shutdown grows MORE (R-Mo.), the chairman of the Senate Rules Committee and a co-sponsor of the resolution, has predicted that Republicans will resolve the issue one way or another by the end of March, though he stressed he was still looking for a bipartisan agreement.

Cornyn, when asked Monday about the timeline for changing the rules, added that it was “coming up pretty soon ... maybe when we come back from the recess.” The Senate is expected to leave town by Friday for a one-week recess.

It’s unclear what kind of deal Democrats would support, if any.

Sen. Dick DurbinDick DurbinFour questions that deserve answers at the Guantanamo oversight hearing Senate dodges initial December crisis with last-minute deal Conservatives target Biden pick for New York district court MORE (D-Ill.) said he had spoken with Sen. Lamar AlexanderLamar AlexanderMcConnell gets GOP wake-up call The Hill's Morning Report - Presented by Alibaba - Democrats return to disappointment on immigration Authorities link ex-Tennessee governor to killing of Jimmy Hoffa associate MORE (R-Tenn.) in recent weeks but that nothing had come out of the talks.

“There are a lot of elements that need to be brought into this conversation. I don’t think it will be decided in isolation,” Durbin told The Hill when asked what a deal would include.

Republicans have said they will honor the blue slip for district court nominees, effectively giving home-state senators veto power over a pick.

When asked why Democrats would object to lowering the amount of required debate time with the blue slip for district judges intact, Durbin pointed to the GOP’s decision to move circuit court nominees over the objection of home-state senators. “We’re not just going to lay back and ignore what’s happening here,” he said. 

“McConnell is determined to flood the courts.”