4 steps to restore thorough Senate vetting of judicial nominees

4 steps to restore thorough Senate vetting of judicial nominees
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Earlier this month, Americans across the country watched in disbelief as one of Donald Trump’s judicial nominees, Matthew Petersen, struggled to answer basic legal questions from a senator. The viral video — which has now been viewed over 8.6 million times — made clear just how important it is for the Senate to do its job and carefully review the nominations of this or any president to lifetime seats on the federal judiciary.

After the embarrassing incident, Peterson withdrew himself from consideration and President TrumpDonald John TrumpHannity urges Trump not to fire 'anybody' after Rosenstein report Ben Carson appears to tie allegation against Kavanaugh to socialist plot Five takeaways from Cruz, O'Rourke's fiery first debate MORE reportedly admitted to Republican Sen. John KennedyJohn Neely KennedyMORE (La.), the senator posing questions in the video, that he does not personally review all of his nominees. But vetting should clearly become a bigger priority, given that Petersen is far from the only Trump nominee utterly unqualified for the federal bench.

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Case in point: this month the White House also announced it would not move forward with a nominee who had referred to transgender children as part of “Satan’s plan.” A third nominee, who had received a “not qualified” rating from the American Bar Association (ABA), also withdrew after it was discovered that he had failed to disclose important facts about his record, including an internet comment defending “the first KKK.”

President Trump reportedly told Sen. Kennedy that when “my guys” send the Senate a nominee who is “not qualified,” then senators should “do your job.” It’s unusual and perhaps unprecedented for a president to acknowledge that his selection system is so poor that he actually expects some of his nominees to be unfit for the bench — and that he is relying on the Senate to do its job so he apparently doesn’t have to work so hard at his own.

Much of the work the Senate does on judicial nominations occurs in the Senate Judiciary Committee, which receives a detailed questionnaire on each nominee’s record, questions each nominee at a hearing, and conducts a vote. In order for the Committee to truly do its job and not simply rubber-stamp sometimes hastily chosen nominees, the Committee should return to important procedures and traditions that have enjoyed bipartisan support for decades. After more than 25 years of working with the Senate Judiciary Committee on nominations, I have seen firsthand how these procedures help protect the integrity of the federal bench.

Specifically, the Committee should:

  1. Schedule hearings on a nominee only after the ABA has finished its review.

This does not mean that the Committee should necessarily defer to and follow the ABA’s ratings; I have seen both Republican and Democratic-controlled Senates confirm some nominees the ABA considered not qualified and reject some who had received a positive rating. But, as it has since President Eisenhower first requested it back in 1953, the ABA does provide valuable information by having a committee of lawyers review the professional competence, integrity, and judicial temperament of judicial nominees, based on thorough consideration of their records and interviews with lawyers personally familiar with their work. And until this year, the Committee did not hold a hearing on a nominee until the ABA had finished its review.

If the ABA had concluded that the nominee was not qualified, the Committee arranged for the ABA to be at the hearing to testify, allowing the Committee to effectively take advantage of the ABA research in doing its own vetting. But on several occasions this year, including on one nominee who was later withdrawn, the Committee failed to follow this procedure and held hearings and even votes on nominees before the ABA had completed its review — despite the objections of Committee Democrats.  

The Committee should return to its prior practice immediately.

  1. Fully respect the blue slip.

Although this year has seen a lot of discussion on the blue slip procedure, under which traditionally both of a nominee’s home state senators must return a blue slip before the Committee holds a hearing on the nominee, its role in careful and bipartisan vetting of nominees warrants re-emphasis. When the blue slip process is respected, a president’s “guys” on his staff most assuredly do not unilaterally decide who to send to the Committee for a hearing.

For decades under the blue slip process, before a nomination was even made, there was almost always genuine consultation with home state senators of both parties — many of whom set up commissions or other procedures to vet possible nominees. Under President Trump, however, some nominations have been made without such consultation. In one case, the Committee chair decided to proceed with a hearing even when a home state senator declined to return a blue slip, in large part because of the lack of pre-nomination consultation.

This is despite the fact that in a number of states, Democratic as well as Republican senators have returned blue slips under Trump and that Republicans have traditionally wielded blue slips much more often than Democrats.

In fact, the Congressional Research Service has reported that until this year, there had been only three exceptions to the blue slip practice in 100 years, and former Republican Committee Chair Orrin HatchOrrin Grant HatchJudiciary Dems say GOP treating Kavanaugh accuser worse than Anita Hill Dem vows to probe 'why the FBI stood down' on Kavanaugh Senate Democrats increase pressure for FBI investigation of Kavanaugh MORE proclaimed just three years ago that eliminating the blue slip would be “disastrous” and would “produce a more politicized judiciary.”  The Committee and its chair should return to the traditional practice of fully respecting the blue slip process, despite the urgings of Majority Leader McConnell and the White House.

  1. Allow adequate time for senators to review questionnaires and prepare for hearings.

As part of the process of submitting a judicial nomination to the Senate, a nominee fills out a detailed questionnaire and (with help from the administration) locates and sends up hundreds or thousands of pages of prior writings, speeches, and other materials for review. To fully vet a judicial nominee, senators and their staffs must have time to review those materials and prepare possible questions before a hearing.

But this year, the Committee held a hearing to consider two nominees to the important federal district court for the District of Columbia barely two weeks after receiving the nominees’ questionnaires. This rush to hold hearings cannot produce adequate Senate vetting of nominees. Members of both parties should be consulted to ensure adequate time is allotted for review of questionnaires, as well as ABA reports, before hearings are held.

  1. Don’t stack hearings with multiple controversial nominees.  

Although Committee hearings have often considered more than one nominee at a time, traditionally no more than one nominee for a federal appellate court is heard at each hearing, unless Committee Democrats and Republicans both consent.

This is because appellate court judges by definition have broader authority than district court judges, and nominees to those courts are often more controversial and have more extensive records, warranting more preparation and questioning at a hearing. But on four different occasions this year, despite the objection of Ranking Member Feinstein, the Committee considered two different appellate court nominees at the same hearing, including one hearing with a third controversial lower court nominee and one including a highly controversial nominee to the Justice Department Civil Rights Division.

This double and triple booking no doubt helped President Trump break an all-time record by having 12 court of appeals nominees confirmed in his first year, as the administration and his allies have proudly trumpeted. But more impartial observers like The Washington Post have drawn a different conclusion: the Senate is “rushing too quickly through Mr. Trump’s choices.”

The Committee should avoid such stacking in the future and restore the other bipartisan and traditional practices discussed above to help ensure that effective Senate vetting of the president’s nominees takes place next year.

Elliot Mincberg is a senior fellow at People For the American Way, a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values under attack.