Dems criticizing Michael Bennet on his judicial voting record are wrong

Dems criticizing Michael Bennet on his judicial voting record are wrong
© Greg Nash

Senator Michael BennetMichael Farrand BennetDemocratic senators urge Facebook to take action on anti-Muslim bigotry Hickenlooper ousts Gardner in Colorado, handing Democrats vital pickup Lobbying world MORE of Colorado is the latest candidate to enter the crowded Democratic presidential primary race for the 2020 election. Yet he is already facing heavy criticism for his Senate record, not on climate change, health care, or immigration policies, but rather for his votes to confirm 32 of the 100 confirmed judicial nominees of President Trump.

Among the critics is Demand Justice, a new advocacy organization that aims to push back against the judicial nominees of Trump. It published a recent digital ad that asked, “Which Senate Democrats make the grade when it comes to fighting Trump’s plan to pack the courts?” The ad gives Senators Elizabeth WarrenElizabeth WarrenOn The Money: Biden to nominate Yellen for Treasury secretary | 'COVID cliff' looms | Democrats face pressure to back smaller stimulus Biden to nominate Janet Yellen as Treasury secretary: report Bottom line MORE, Cory BookerCory BookerSenate Democrats reelect Schumer as leader by acclamation  Hill associations push for more diversity in lawmakers' staffs Sanders celebrates Biden-Harris victory: 'Thank God democracy won out' MORE, and Bernie SandersBernie SandersFive House Democrats who could join Biden Cabinet Biden names John Kerry as 'climate czar' in new administration In the final chapter of 2020, we must recommit to repairing our democracy MORE high marks. However, it gives both Bennet and Senator Amy KlobucharAmy KlobucharFormer Minnesota Democratic leader quits party Top cybersecurity official ousted by Trump Lawmakers question tech CEOs about content moderation in first post-election hearing MORE failing grades.

The ad concludes by warning Senate Democrats to “stop siding with Trump.” The grades are from a report card by Demand Justice, which scrutinizes the votes of Senate Democrats during the 115th Congress. High grades were reserved for Democrats who showed “willingness to fight” judicial nominees by Trump. Lower grades were given to Democrats who did not “fight hard enough.” The report card argues that Democrats should reject every judicial nominee. It also encourages the senators to not return blue slips for those judicial nominees from their home states.


Although this approach may be considered a justified response to the failed nomination of Merrick Garland, the controversial hearing for Justice Brett Kavanaugh, and Senate Republican rule changes, it is nonetheless a futile and shortsighted strategy. A wholesale rejection of each judicial nominee will not stop the current pace of nominations, but it will fuel the escalation of judicial confirmation battles, which does nothing to protect the institution that advocates claim to want to save.

Senate Democrats obviously do not have the numbers to fully stop every judicial nomination. Thanks to the “nuclear option” implemented by both former Senate Majority Leader Harry Reid and current Majority Leader Mitch McConnell, only a simple majority is necessary to confirm judicial nominees. More troublingly, a casual rejection of each judicial nominee could summon the end of the blue slip policy, an uncodified Senate tradition with over 100 years of history. Because it is a tradition rather than a rule, it has evolved over the years. Currently, a district court nomination will not proceed unless home state senators return a favorable blue slip.

Since most judicial vacancies lie in the lower district courts, it is possible for Senate Democrats to temporarily stall most judicial nominations. To stop the delay, Senate Judiciary Committee Chairman Lindsey Graham could simply change the blue slip policy. Democrats may cry foul, but there would likely be enough political support to make the change. Unlike appellate nominations, district court nominees tend to be uncontroversial selections with bipartisan appeal. An arbitrary rejection of each of these selections would offer Senate Republicans political cover to permanently end the blue slip policy, and this tradition would thus disappear forever.

Outside of Washington, a wholesale rejection of judicial nominees also causes real world harm. There are more than 120 judicial vacancies in district courts nationwide. Dozens of these courts are facing “judicial emergencies” because of overwhelming caseloads. Blocking these nominations to score political points disproportionately hurts the poor and most vulnerable from efficiently and affordably resolving legal disputes. It is vital that these courts be staffed as quickly as possible.

During the confirmation hearing of Justice Neil Gorsuch two years ago, Bennet observed that “it is tempting to deny” him a fair hearing because of past Senate failure. Bennet concluded, however, that “two wrongs never make a right” and that the Supreme Court is “too important for us not to find a way to end our destructive gridlock and bitter partisanship.” Time will tell if his optimism can overcome eagerness for the courts to become the next institution to suffer from more rampant politicization.

Anthony Marcum is a research associate with the R Street Institute.