Senate Majority Leader Mitch McConnell has a plan to confirm all of President Donald Trump’s judicial nominees who make it out of committee this year. The past two weeks show there’s basically nothing Democrats can do to stop it, short of winning back control of the Senate.
“If we can hold the Senate this fall, given the spectacular job President Trump and his team have done of picking judges, we can do this for two more years, so that through the full four years of President Trump’s term, he will make a lasting generational contribution to the country, having strict constructionists on the court,” McConnell said on The Hugh Hewitt Show last week.
Wednesday illustrated one way Senate Republicans will try to help Trump do that: The Senate Judiciary Committee held a hearing for Ryan Bounds, a federal prosecutor nominated for the US Court of Appeals for the 9th Circuit, over the objections of his home state senators. Senate Judiciary Committee Chair Chuck Grassley scheduled the hearing even though Oregon Sens. Jeff Merkley and Ron Wyden refused to return what are known as “blue slips” — pieces of paper signaling a senator’s approval or disapproval.
Democrats called Wednesday’s hearing unprecedented, saying the Congressional Research Service found no instance of a judicial nominee having a hearing, let alone being confirmed, without at least one blue slip turned in, positive or negative. Judicial nominees have rarely gotten through the Senate without the approval of their home state senators, a system that senators have used to exert leverage with the White House in choosing candidates.
“Today, we’re making history — really bad history, for this institution and for the country and our Constitution,” Connecticut Sen. Richard Blumenthal, a Democrat on the committee, said.
Republicans have pointed out that the blue slip tradition isn’t an official rule, and accused Democrats of abusing the process to try to veto the president’s picks. During Wednesday's hearing, Texas Sen. Ted Cruz cited examples of past judicial nominees who moved forward in the confirmation process even when senators returned blue slips indicating their disapproval; Democrats have focused on the fact that blue slips weren’t returned at all for Bounds, negative or positive.
The day before Bounds’ hearing, the Senate pressed ahead with a proposed rules change to speed up judicial confirmations. McConnell has moved this week for votes on six appeals judges, including 7th Circuit nominee Michael Brennan, over the objection of one of his home state senators, Wisconsin Sen. Tammy Baldwin. And an influential conservative advocacy group announced last week that it is launching a million-dollar ad campaign to back those efforts.
There aren’t any signs the nominations will slow down. Since January, the White House has announced more than four dozen judicial nominees; the latest batch was sent to the Senate earlier this week. There are 148 current vacancies across the federal courts, and more than 30 upcoming vacancies have been announced. There are 81 nominees pending in the Senate, and the White House continues to vet candidates.
Democrats say Republicans are ceding too much power to the White House when it comes to nominations. During Wednesday’s hearing, Rhode Island Sen. Sheldon Whitehouse said that if blue slips no longer have the power to hold up a nomination, the White House will have no reason to defer to the historical practice of designating certain seats on the regional appeals courts to represent each of the states covered by that circuit. That could hurt Republicans as well as Democrats, he said.
“Those designations do not exist in the Constitution, they do not exist as a matter of law, they exist as a matter of Senate tradition,” Whitehouse said. “The only reason that we don’t get rolled about that is that we as colleagues respect each other’s blue slips with respect to those state seats on the circuit courts of appeal.”
Bounds’ nomination had been controversial — not only because of the blue slip issue but also because of op-eds he wrote when he was an undergraduate student at Stanford University in which he wrote about campus diversity issues using language that critics said was inflammatory and insensitive. In one piece, he accused campus “multiculturalists” of stereotyping minorities who espoused conservative views, and he listed some of the derogatory terms used to describe them.
Bounds said on Wednesday that in including those words, he was criticizing people who used them, not embracing them. He said that he had used “overheated” and “overzealous” language and hadn’t always been respectful of the opposing side. But he said that in his career he promoted efforts to diversify the legal profession.
Democrats also accused Bounds of trying to hide his college writings from an Oregon committee that vets candidates for the senators; Bounds said he was told the committee only needed his writings as far back as law school. The Oregon committee had recommended Bounds and several other candidates to the White House but said in a letter to Wyden and Merkley that the majority of members would no longer recommend him.
Republicans have not pushed back on Bounds’ nomination, meaning he’s likely to clear the committee.
Speeding things up
On Tuesday, the Senate Committee on Rules and Administration approved a resolution to cut the time it takes for the Senate to hold a final vote on US district court nominees. Absent agreement from Democrats to end debate on a nominee, McConnell must hold what’s known as a cloture vote — under current Senate rules, there is then a 30-hour period of post-cloture debate before the Senate votes.
Republicans and conservative advocacy groups have accused Democrats of forcing cloture votes even for noncontroversial nominees to create a logjam and slow down the pace of confirmations. They point to examples of nominees over the past year who had cloture votes and then were confirmed unanimously or with little opposition from Democrats.
In December, Oklahoma Sen. James Lankford introduced a resolution to limit post-cloture debate time for district court nominees to two hours, paving the way for final votes the same day. The resolution would also limit post-cloture debate to eight hours for sub-cabinet executive nominees, excluding judges and US Supreme Court justices. The resolution is now before the full Senate for consideration.
A coalition of civil rights organizations sent a letter to senators last week opposing the move, writing that limiting post-cloture to two hours for district court nominees would “erode the Senate’s ability to serve as an independent check on the President’s troubling nominations.” The 30-hour rule was the “only remaining guardrail” to make sure senators had time to vet a nominee before voting, they wrote.
Lankford’s resolution is backed by the Judicial Crisis Network, an organization that advocates for conservative judicial nominees. The group last week announced a million-dollar ad buy supporting what they’ve characterized as “gridlock reform” — the ad, which JCN said will run for two weeks on CNN, Fox, and airport channels, accuses Democrats of obstructing Trump’s nominees.
Earlier this month, a group of liberal activists launched a new organization focused on the judiciary, Demand Justice, that they hope will counter the efforts of JCN and other conservative groups. Demand Justice is expecting to raise $10 million in its first year, according to the New York Times. That’s how much money JCN pledged to spend to support Supreme Court Justice Neil Gorsuch’s nomination last year.
To date, Democrats have been unable to convince any Republicans to switch sides to vote against Trump’s judicial nominees, although three nominees withdrew or the administration decided to drop them last year amid concerns from Republicans as well as Democrats about their qualifications. The administration confirmed a record number of appeals court judges in 2017.