Federal judicial selection

  • June 14, 2017
    Guest Post

    *This piece originally appeared in The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    Tomorrow, the Senate Judiciary Committee will hold a hearing on two circuit court nominees: John Bush for the Sixth Circuit and Kevin Newsom for the Eleventh Circuit. Many concerns have been raised about these nominees (as well as the third nominee on the hearing, Damien Schiff for the Court of Federal Claims), but setting aside the mertis for just a moment, we cannot lose sight of the process as Chairman Grassley casusally rejects another Senate norm in the interest of rubberstamping President Trump's judicial nominees.

    It has long been the practice of the Senate Judiciary Committee to consider only one circuit court nominee per nomination hearing. Exceptions are rare and usually have extenuating circumstances: the Judiciary Committee held hearings for more than 60 of President Obama’s circuit court nominees, and held a hearing with two circuit court nominees only three times—each time with the support of the minority party.

    As then-Ranking Member Sessions explained—in agreeing to move forward—at a joint hearing for Fourth Circuit Judges James Wynn and Albert Diaz, both of North Carolina:

  • May 15, 2017
    Guest Post

    *This piece originally appeared on Medium.

    by Kyle Barry, Legal Defense Fund Policy Counsel

    Senate Judiciary Committee Chairman Chuck Grassley has revealed that he is willing to trash longstanding Senate tradition and undermine his Senate colleagues to hand control of the federal courts over to President Donald Trump. Grassley said that he will allow Trump to go over the heads of Democratic senators to fill federal appeals court vacancies in their home states “because that’s the way it’s been.” Grassley’s statement is both historically inaccurate and dangerous, as it removes a key protection against this administration’s relentless attacks on democratic norms and the rule of law.

    Grassley’s remarks addressed how he will apply the Judiciary Committee’s “blue slip” policy. Traditionally, judicial nominees do not receive a confirmation hearing until both senators from their home state indicate approval on a blue sheet of paper sent to the Committee. For 100 years, this policy has served as a vital part of the Senate’s constitutional obligation to provide advice and consent on nominations. The blue slip ensures that senators advise on who serves as federal judges for the people they represent and preserves independent courts by making judicial selection a more inclusive process not confined to the president and his political allies. The blue slip is even more valuable now, with a president who picks judges in concert with right-wing interest groups and rushes to announce nominees before the nonpartisan American Bar Association evaluates their qualifications.

  • April 4, 2017
    Guest Post

    *This post was adapted from a longer piece at The Vetting Room.

    by Harsh Voruganti, Founder and Principal at The Voruganti Law Firm

    On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar, for a seat on the Sixth Circuit Court of Appeals. With over 136 current and future vacancies on the federal bench, more nominees will likely follow. With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

    Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on. When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the senators representing the nominee’s home state. The senators then return the blue slip, indicating either approval or disapproval of the nominee. If a home state senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

    While the blue slip practice goes back about 100 years, there are rare examples of nominees moving through the Senate Judiciary Committee without two positive blue slips. In 1983, then Judiciary Committee Chairman Strom Thurmond (R-SC) processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Sen. Alan Cranston (D-CA). A few years later, then-Chairman Joe Biden (D-DE) processed President George H.W. Bush’s nomination of Vaughn Walker to the same court, again over Cranston’s objection.

  • March 30, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?

    • Senate Republicans filibustered D.C. Circuit nominee Caitlin Halligan (twice) and 9th Circuit nominee Goodwin Liu, even though both had majority support.
       
    • Senate Republicans filibustered 10th Circuit nominee Robert Bacharach of Oklahoma, even though he was supported by both of his Republican home-state Senators, Inhofe and Coburn. His nomination was not controversial (as evidenced by his 93-0 confirmation eight months later) but Republicans set an arbitrary cut-off date for confirmations during the 2012 presidential election year—similar to their historic mistreatment of Judge Merrick Garland’s nomination to the Supreme Court last year.
       
  • February 7, 2017
    Guest Post

    by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

    Over the weekend, President Trump went on a 2-day-long Twitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations. 

    What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty. 

    This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that.