Two obstacles for Trump's judicial nominees to overcome

Two obstacles for Trump's judicial nominees to overcome
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President TrumpDonald TrumpTrump DOJ demanded metadata on 73 phone numbers and 36 email addresses, Apple says Putin says he's optimistic about working with Biden ahead of planned meeting Biden meets Queen Elizabeth for first time as president MORE entered office with an unprecedented number of judicial vacancies to fill. It was a huge opportunity to make an immediate impact on the federal judiciary, and Trump’s team quickly set to work identifying, vetting, and nominating stellar nominees.

It paid off. More appeals court judges were confirmed in Trump’s first year in office than any other first-year president in history. With 12 appeals court judges, six district court judges, and Supreme Court Justice Neil Gorsuch confirmed in 2017, Trump’s record on judges was off to a great start.

But 2018 has been slow moving. Despite the administration continuing to send nominations to the Senate, only a handful of judges have been confirmed. Though there are 11 appeals court nominees pending, the Senate has confirmed just one this year.


Why the bottleneck? Trump’s judicial nominees face two major hurdles in the Senate: blue slips and post-cloture debate.


Senate Democrats continue to abuse the blue-slip policy to delay nominees from moving forward. Blue slips are a courtesy accorded by the chairman of the Senate Judiciary Committee that allows senators to give their opinion of nominees for judicial vacancies located within their states. In the blue slip’s 100-year tradition, it’s primarily been used to ensure home-state senators are involved in the selection process rather than as a single-senator veto.

Chairman Charles GrassleyChuck GrassleyHouse unveils antitrust package to rein in tech giants Iowa governor questions lack of notice on migrant children flights to Des Moines Senate crafts Pelosi alternative on drug prices MORE (R-Iowa) announced last fall that he would continue giving deference to home-state senators regarding district court nominees. But for appeals court nominees, Grassley said he would consider negative blue slips or unreturned blue slips on a case-by-case basis. 

Grassley made good on this promise by scheduling a hearing last November for Davis Stras, nominated to an Eighth Circuit vacancy based in Minnesota, after then-Sen. Al FrankenAlan (Al) Stuart FrankenDemocrats, GOP face crowded primaries as party leaders lose control Gillibrand: 'I definitely want to run for president again' Maher chides Democrats: We 'suck the fun out of everything' MORE (D-Minn.) had refused to return his blue slip. Sen. Amy KlobucharAmy KlobucharHouse unveils antitrust package to rein in tech giants Democrats reintroduce bill to create 'millionaires surtax' Senate Democrats befuddled by Joe Manchin MORE (D-Minn.) returned her blue slip and ultimately voted in favor of Stras’s confirmation to the Eighth Circuit last month.

The committee also has proceeded with a hearing for Michael Brennan, a Seventh Circuit nominee based in Wisconsin, over the protests of Sen. Tammy BaldwinTammy Suzanne BaldwinTo reverse the teaching shortage in low-income communities, give educators incentive to stay Senate Democrats offer bill to scrap tax break for investment managers Senate Democrats push Biden over raising refugee cap MORE (D-Wisc.), who refused to meet with Brennan, let alone return her blue slip.

The committee has not yet scheduled a hearing for Ryan Bounds, a nominee to a Ninth Circuit vacancy in Oregon. Democrat home-state senators Ron WydenRonald (Ron) Lee WydenThe Hill's Morning Report - Presented by Facebook - Bipartisan group reaches infrastructure deal; many questions remain Senate panel advances nominations for key Treasury positions Overnight Health Care: US to donate 500 million Pfizer doses to other countries: reports | GOP's attacks on Fauci at center of pandemic message | Federal appeals court blocks Missouri abortion ban MORE and Jeff Merkley had another individual in mind for the vacancy, and they informed the White House they intend to block Bounds’ confirmation.

Grassley should continue scheduling hearings and committee votes to move these nominees along. Once out of the Judiciary Committee, however, many nominees face another obstacle.

Senate Democrats also are demanding cloture votes on many executive branch and judicial nominees. Invoking cloture used to be a meaningful step, because it took 60 votes to end debate so that a confirmation vote could occur. In essence, it was a way to filibuster a nominee. But Senate Democrats did away with the filibuster for lower court judges and executive branch nominees in November 2013, requiring only a simple majority vote for confirmation.

Republicans put the final nail in its coffin last year with Neil Gorsuch’s confirmation to the Supreme Court. Now, demanding a cloture vote and up to 30 hours of debate on each nominee is simply a tactic to delay and obstruct. In many instances, none of the senators has taken the opportunity to speak out about nominees they find objectionable during the 30 hours of debate. Instead, they use it to run down the clock.

Several of these nominees (district court nominees David Nye, Donald Coggins, Thomas Parker, Michael Brown, and Walter Counts) were ultimately confirmed unanimously, and Eighth Circuit nominee Ralph Erickson, was confirmed 95-1. This shows that the demand for 30 hours of debate had little to do with whether these nominees should be confirmed, and a lot to do with trying to thwart the Senate from confirming more nominees.

There is currently a proposal in the Senate to reduce the time for post-cloture debate. Senate Resolution 355, introduced by Sen. James LankfordJames Paul LankfordPolice reform negotiations enter crucial stretch GOP turns against Jan. 6 probe as midterm distraction The Hill's Morning Report - Presented by Facebook - Biden wants Congress to pass abortion bill, pushes for Mideast cease-fire MORE (R-OK), would limit debate on district court nominees to two hours and most executive branch nominees to eight hours while leaving the 30 hour rule in place for Cabinet-level officials and other judicial nominees.

This would prevent obstructionists from simply eating up the Senate’s time by demanding 30 hours of debate. It wouldn’t be the first time the Senate has adopted these rules. In 2013, a coalition of senators (including 59 current Senators) adopted the same rule for the 113th Congress.

The confirmation of judges was not always the battleground we see today. Speaking at New York University’s law school earlier this month, Justice Ruth Bader Ginsburg expressed dismay over the current state of the confirmation process. Pointing out that the late-Justice Antonin Scalia had been confirmed unanimously and that she was confirmed 96-3, she said, “My hope is that someday it will get back to the way it was.”

Whether or not that’s likely to come to pass, the Senate should continue to make progress towards filling the more than 140 vacancies on the federal courts. Preventing the abuse of blue slips and post-cloture debate are common-sense ways Senate Republicans can ensure President Trump’s many high-quality nominees are confirmed to the federal bench.

Elizabeth Slattery is a legal fellow in the Institute for Constitutional Government at The Heritage Foundation.