Judicial Nominations

  • 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.

  • April 3, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

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

    The Senate Rules provide a 60-vote threshold for Supreme Court nominees to be confirmed, and it appears less and less likely that Neil Gorsuch will be able to meet that threshold. If he cannot, Senate Republicans will face a choice—and yes, it is their choice—as to whether they should unilaterally change the Senate Rules through the nuclear option, so that Supreme Court nominees can be confirmed with just a majority vote.

    Most of the arguments against the nuclear option have focused on institutional interests for both the Senate and the Supreme Court. Retaining the 60-vote threshold would preserve the unique nature of the Senate that encourages broader consensus and less extremism. There also is a concern—on both sides—that reducing the confirmation threshold to a simple majority could lead to more ideological Supreme Court Justices and a more polarized Court.

    Those are compelling reasons in themselves, but there also is a far more practical question that Republicans must consider: How will Senate Democrats respond to this historic power grab? If Democrats follow the Republican response in 2013, it will freeze the Senate for thousands of hours, preventing Republicans from advancing their agenda.

    In November 2013, Senate Democrats invoked the nuclear option to lower the confirmation threshold for lower court and executive branch nominees. In response, over the next 13 months, Republicans forced Democrats to file cloture on 154 nominees, and they forced 131 cloture votes.

  • 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.
       
  • November 3, 2016

    by Caroline Fredrickson

    Let’s project past the partisan noise and hand-wringing of the Nov. 8 election. It is never too early to take stock of judicial nominations in the post-election lame duck session of Congress. 

    Since Senators left the Capitol in September, vacant seats on the federal bench quietly keep growing. On Oct. 31, Judge Donovan Frank of the District of Minnesota retired from a full-time caseload, creating the second vacancy in one of the busiest courthouses in the nation. This seat has been designated a judicial emergency by the Administrative Office for U.S. Courts and is the second one for this District alone. Senators Amy Klobuchar (D-Minn.) and Al Franken (D-Minn.) promptly announced their process for filling these vacancies.

    Now Minnesota has only five full-time federal district court judges. When fully staffed, it has seven. This smaller bench translates into larger caseloads for remaining judges and longer wait times for anyone seeking justice. 

    For a second year in a row, this court will operate with a minimum of one vacancy. The court last year had a vacancy for six months. In a bit of good news, the Senate confirmed Judge Wilhelmina Wright, the first female African American federal judge in Minnesota, to fill the vacancy this past January.

  • October 26, 2016

    by Caroline Fredrickson

    Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

    Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

    To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

    Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

    Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.