The Senate confirmed as many of President Trump’s federal appeals court nominees last week, four judges, as it confirmed during former President Barack Obama’s entire first year in office.
Republicans controlling Congress in the Trump era are moving at a much faster clip than Democrats ever did during Obama's tenure. Four federal appeals court nominees were confirmed by the first anniversary of Obama’s inauguration, while Trump already has placed eight judges on the appeals courts, according to data compiled by the Federal Judicial Center.
The Senate confirmed Amy Coney Barrett to the 7th Circuit Court of Appeals, Joan Larsen to the 6th Circuit Court of Appeals, Allison Eid to the 10th Circuit Court of Appeals, and Stephanos Bibas to the 3rd Circuit Court of Appeals in just four days last week.
Trump's shaping of the federal courts is being made possible by Republicans in the Senate and White House, who are working together in an unprecedented fashion to confirm conservative judges.
Unlike Justice Neil Gorsuch’s confirmation to the Supreme Court, which required killing the Senate filibuster for high court nominees, Senate Republicans’ newest accomplishment in loading up the federal judiciary with Trump judges came without changing Senate rules or traditions. The groundwork began with Senate Judiciary Committee Chairman Chuck Grassley’s work behind the scenes to overcome Democrats’ opposition so that he didn't have to make changes to the Senate’s blue slip procedure.
Under the Senate Judiciary Committee's blue slip tradition, a state's senators are consulted by the administration before a president nominates a judge from that state, regardless of party affiliation. The states’ senators historically have then had the opportunity to request a block of the nominee from receiving a Senate Judiciary Committee hearing and vote.
Grassley met with seven Democrats, including Colorado Sen. Michael Bennet, Michigan Sens. Debbie Stabenow and Gary Peters, Indiana Sen. Joe Donnelly, Pennsylvania Sen. Bob Casey, and Minnesota Sens. Al Franken and Amy Klobuchar about appeals court nominees from their states and the blue slip process. Only Franken failed to return a blue slip after Grassley went senator-to-senator in a manner reminiscent of his “Full Grassley” approach to campaigning for office in every Iowa county.
“A lot of the members are fairly new members I’ve gone to, so I think it was important I go to them, explain [to] them how it was done,” Grassley told the Washington Examiner. “There was reason to believe that Democrats would drag their feet maybe as a result of their caucus, or their leader’s position, and I guess then I kind of wanted to let them know that I take the job of being chairman serious and the blue slip being a serious part of that process. For the most part, I went to find out what can we do, what information do you need, what can we do to help you make up your mind? Stuff like that.”
In one instance, Grassley said he succeeded at getting information from the Justice Department that two Democratic senators did not receive, which Grassley said he thought made a “big difference” in the Democrats' willingness to work with Republicans.
Grassley credited the White House as the “most important thing” in expediting the judicial confirmation process.
The White House similarly consulted with Senate Democrats to ensure safe passage for its judicial nominees, according to Leonard Leo, Trump’s adviser on the Supreme Court and judicial nominations.
“This is an administration that has taken extraordinary lengths to consult with Democrat senators, more than I remember in my professional life than with any other Republican or Democrat administration,” said Leo, who also worked to help confirm judges during President George W. Bush’s administration. “And so, when a home state senator has failed to return a blue slip in the current context, it’s not for lack of consultation.”
Leo said White House Counsel Don McGahn has met with senators and relied on longstanding relationships with them to advance Trump’s agenda.
In a statement, White House deputy press secretary Hogan Gidley praised last week's confirmations of four appeals court judges and one federal judge as evidence of Trump delivering on his promise to nominate “highly qualified” judges.
“Despite Senate Democrats' use of petty political tactics to delay his nominees, the president will continue nominating outstanding candidates like the five judges confirmed this week,” Gidley said. “We appreciate the hard work of Chairman Grassley and [Majority] Leader Mitch McConnell, and we urge the Senate to confirm all of the remaining nominees because it's what the American people deserve.”
After seeking to distract attention from several judicial nominees pending on the floor, Senate Majority Leader Mitch McConnell and other Republicans in leadership positions decided last week to accelerate the confirmation process. Senate Republicans threatened to keep the chamber open for business on the weekend if necessary, and Democrats caved.
Senate Minority Whip Dick Durbin told the Washington Examiner that Democrats calculated nothing would be gained by keeping the Senate open on the weekend and would rather go home.
But some Senate Democrats have signaled they may soon be readying stauncher opposition to Trump’s judicial nominees, as indicated by Franken’s decision not to return a blue slip on Minnesota Justice David Stras’ nomination to the 8th Circuit Court of Appeals.
Leo said he does not think Grassley needs to make any changes or bold pronouncements on blue slips “because the weight of the committee’s history is basically a blue slip process that where you take it on a case-by-case basis.”
In the 100-year existence of the blue slip process, only two Senate Judiciary Committee chairmen, both Democrats, have allowed a single senator to block consideration of nominees due to a negative or unreturned blue slip, according to information provided by Grassley's Judiciary Committee staff. The two chairmen who interpreted the blue slip procedure this way were Vermont Sen. Patrick Leahy, who headed the committee from 2001-2003 and 2007-2015, and Mississippi Sen. James Eastland, who led the committee from 1956 to 1978.
Eastland, who the New York Times said referred to the Supreme Court as “the greatest single threat to our Constitution,” crafted his application of the blue slip procedure as part of an effort to maintain segregation in the South.
“Historically, the 'blue-slip-as-veto' approach lacks deep roots,” wrote Tuan Samahon, a Villanova University Law professor, in 2012. “When segregationist ‘Dixiecrat’ Senator John Eastland chaired the Judiciary Committee, he endowed the blue slip with veto power to, among other things, keep Mississippi’s federal judicial bench free of sympathizers with Brown v. Board of Education. That strong reading reigned during his chairmanship (1956-78) but was abandoned promptly thereafter.”
If Democrats seek a battle with Grassley over blue slips, they may need to rely on Eastland's view of the “blue-slip-as-veto.” But Grassley told the Washington Examiner he has no plans to change how the blue slip process is observed by his committee.
“It’s important, I guess, because it has worked,” Grassley said. “And I’ve always said that I’m going to do it the way it’s always been done except there’s been some exceptions. So far I haven’t had to have any exceptions, but you know maybe there’ll be some exceptions coming up here.”
If Senate Democrats decide to take the fight over Trump’s judicial nominees to the Senatef loor, other rank-and-file Republicans appear to be spoiling for a fight. Nevada Sen. Dean Heller spoke Thursday after the upper chamber confirmed Bibas to challenge Democrats to bring the battle over the courts to the floor. Heller said he thought the Senate should remain open through the Thanksgiving holiday and said he was prepared to remain in the Senate around the clock if necessary to confirm federal judges.
“Now, members are entitled to their opinions and as a deliberative body, we should debate nominees, but if you’re going to debate a nominee I think you actually need to come down here and speak on them,” Heller said Thursday. “You can’t just hide behind your desk and run the debate clock. If you have a problem with a nominee, then you should come down to the floor, voice your concerns. If you’re not willing to do this, then you shouldn’t hold this nominee hostage to an artificial clock.
“This is what’s wrong in Washington. We should use debate time on a nominee to debate the nominee. And if there’s no more debate then we should vote on that nominee and move on to the next one. The Constitution guarantees the right to a speedy trial. As the body that confirms judges that make that constitutional right possible, we have a critical responsibility and we need to do whatever it takes to fulfill this duty. In order to deliver swift justice throughout the country, these seats need to be filled. I’m ready and willing to work day and night, weekends, holidays, do what Nevadans sent me to Washington to do and to accomplish.”
The battle over the courts could take center stage again later this week. The Senate Judiciary Committee expects to advance five more federal judges to the full Senate on Thursday, including D.C. Circuit Court of Appeals nominee Gregory G. Kastas.