Federal judicial selection

  • 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. 

  • July 10, 2015

    by Caroline Cox

    On Tuesday, the Senate confirmed Kara Farnandez Stoll with a 95-0 vote for a seat on the U.S. Court of Appeals for the Federal Circuit. The Senate Judiciary Committee approved her nomination in April, and her confirmation will make her the first minority woman to serve on the Federal Circuit.

     The Senate Judiciary Committee voted on three judicial nominees on Thursday. The Committee voted to send the nominations of Luis Felipe Restrepo, to serve on the U.S. Court of Appeals for the Third Circuit, Travis Randall McDonough, to serve on the U.S. District Court for the Eastern District of Tennessee, and Waverly D. Crenshaw, Jr., to serve on the U.S. District Court for the Middle District of Tennessee, to the Senate for confirmation votes.

    The large number of judicial vacancies continue to make it difficult for federal courts to adequately conduct business and deliver justice. Carl Tobias, the Williams Chair in Law at the University of Richmond, urges the Senate to fill the vacancies on the U.S. Court of Federal Claims at The Hill, and the blog for the Alliance for Justice examines how Texas has become the epicenter of the judicial vacancy crisis.

    There are currently 62 vacancies, and 27 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • May 1, 2015

    by Caroline Cox

    On Thursday, President Obama announced five new judicial nominations: Todd Sunhwae Kim to be an Associate Judge of the District of Columbia Court of Appeals, and Julie Helene Becker, William Ward Nooter, Robert A. Salerno, and Steven M. Wellner to be Associate Judges of the Superior Court of the District of Columbia.  

    Senator Chuck Grassley, the chair of the Senate Judiciary Committee, refuses to admit his part in the delays on judicial nominees. As the Alliance for Justice explains, the senator has claimed that Republicans should take credit for nominees confirmed last congress, but has denied any responsibility for two months of Loretta Lynch’s confirmation wait that occurred in the same time period.

    More troubling still, the senator’s comments at the National Press Club on Monday indicate that he may wish to shut down judicial confirmations entirely. Senator Grassley stated, “Come July of 2015, probably they’ll be cut off and not approving any.”

    The blog of People for the American Way illustrates the problem with cutting off judicial confirmations in July. Not only could this move continue to swell the number of judicial vacancies, but it also comes at a time when the nominees that have presented are being considered at a glacial pace.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.