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 John TrumpBooker hits Biden's defense of remarks about segregationist senators: 'He's better than this' Booker hits Biden's defense of remarks about segregationist senators: 'He's better than this' Trump says Democrats are handing out subpoenas 'like they're cookies' 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.

ADVERTISEMENT

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 CornynSanders says Juneteenth should be a national holiday Sanders says Juneteenth should be a national holiday GOP frets about Trump's poll numbers 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 McConnellOvernight Defense: House passes T spending package with defense funds | Senate set to vote on blocking Saudi arms sales | UN nominee defends climate change record Overnight Defense: House passes T spending package with defense funds | Senate set to vote on blocking Saudi arms sales | UN nominee defends climate change record Senate to vote Thursday to block Trump's Saudi arms deal 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 FeinsteinDemocrats detail new strategy to pressure McConnell on election security bills Democrats detail new strategy to pressure McConnell on election security bills Hillicon Valley: GOP senator wants one agency to run tech probes | Huawei expects to lose B in sales from US ban | Self-driving car bill faces tough road ahead | Elon Musk tweets that he 'deleted' his Twitter account MORE (Calif.), the top Democrat on the panel, and Kamala HarrisKamala Devi HarrisDemocrats asked to create ideal candidate to beat Trump pick white man: poll Democrats asked to create ideal candidate to beat Trump pick white man: poll Biden defends remarks about segregationist senators: 'Apologize for what?' 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 GrahamSecond ex-Senate staffer charged in aiding doxxing of GOP senators Second ex-Senate staffer charged in aiding doxxing of GOP senators Meghan McCain clashes with Joy Behar as the 'sacrificial Republican' on 'The View' 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 SchumerCharles (Chuck) Ellis SchumerSenate confirms Trump judicial nominee criticized for being hostile to LGBT community Senate confirms Trump judicial nominee criticized for being hostile to LGBT community Democrats detail new strategy to pressure McConnell on election security bills MORE (D-N.Y.) and Sen. Kirsten GillibrandKirsten Elizabeth GillibrandOvernight Defense: House passes T spending package with defense funds | Senate set to vote on blocking Saudi arms sales | UN nominee defends climate change record Overnight Defense: House passes T spending package with defense funds | Senate set to vote on blocking Saudi arms sales | UN nominee defends climate change record 'We fight on': 2020 Democrats mark Juneteenth 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.”

ADVERTISEMENT

“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 KavanaughSecond ex-Senate staffer charged in aiding doxxing of GOP senators Second ex-Senate staffer charged in aiding doxxing of GOP senators Supreme Court hands Virginia Democrats a win in gerrymandering case MORE, would not be subject to the new rule if it’s enacted.

Sen. Roy BluntRoy Dean BluntDemocrats detail new strategy to pressure McConnell on election security bills Democrats detail new strategy to pressure McConnell on election security bills Senate Democrats to try to force additional election security votes 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 DurbinRichard (Dick) Joseph DurbinOvernight Health Care: Trump officials defend changes to family planning program | Senators unveil bipartisan package on health costs | Democrats pass T spending bill with HHS funds Overnight Health Care: Trump officials defend changes to family planning program | Senators unveil bipartisan package on health costs | Democrats pass T spending bill with HHS funds Kushner meeting with senators to craft asylum deal MORE (D-Ill.) said he had spoken with Sen. Lamar AlexanderAndrew (Lamar) Lamar AlexanderOvernight Health Care: Trump officials defend changes to family planning program | Senators unveil bipartisan package on health costs | Democrats pass T spending bill with HHS funds Overnight Health Care: Trump officials defend changes to family planning program | Senators unveil bipartisan package on health costs | Democrats pass T spending bill with HHS funds Chris Murphy may oppose bipartisan health bill unless it addresses ObamaCare 'sabotage' 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.”