October 15, 2018

Five Ways the White House and Senate Have Broken the Judicial Confirmation Process


Update 10/25: The Senate Judiciary Committee held a second hearing during recess, attended by only two senators.

Last week, Majority Leader Mitch McConnell forced confirmation of 15 lower court nominees by threatening to cancel recess ahead of the midterm elections to confirm all judicial nominees waiting for votes. This week, the Senate Judiciary Committee is moving forward with a hearing on 6 lower court nominees, despite the fact that all other Senate Committees are canceling their meetings during this recess and that Ranking Member Dianne Feinstein (D-Cal.) has stated her opposition.

View ACS's statement on this unprecedented power grab.

These 6 lower court nominees being considered in the hearing are: Allison Rushing (4th Cir., N.C.), Wendy Berger (M.D. Fla.), Thomas Barber (M.D. Fla.), Corey Maze (M.D. Ala.), Rodney Smith (S.D. Fla.), and T. Kent Wetherell (N.D. Fla.).

This hearing is further evidence that the White House and Senate majority are willing to break norms and traditions to transform the lower courts, which are the last resort for most legal cases.

Since 2017, the Senate Majority has confirmed more than 80 nominees to lifetime appointments, 29 of them to the U.S. Circuit Courts of Appeals. It has done this by completely disregarding the Senate’s “advice and consent” role, circumventing the usual vetting process for nominees being considered for lifetime appointments.

Here are five ways the White House and Senate have broken the process to confirm many concerning nominees to lifetime positions:

  1. Advice & Consent: The White House has ignored home-state Senator advice and consent. Just last week, President Trump nominated three individuals for vacancies on the U.S. Court of Appeals for the Ninth Circuit in California, ignoring input from Senators Feinstein and Harris.
  2. Blue Slips: The long-standing tradition of the Senate Judiciary Committee is that the Chair would only proceed with a confirmation hearing for those nominees who receive both of their home-state Senators’ support in the form of a physical blue piece of paper, the “blue slip.” Chair Chuck Grassley has held hearings for five nominees over objections of home-state Senators, including last week for two nominees to the U.S. Court of Appeals for the Sixth Circuit who did not receive blue slips from Senator Sherrod Brown.
  3. ABA Ratings: Since 1989, all but one Administration provided the American Bar Association’s Standing Committee on the Federal Judiciary an opportunity to independently review potential nominees’ qualifications and temperament pre-nomination. This Congress, three nominees have received unanimous Not Qualified ratings, and an additional 13 nominees at least partially Not Qualified ratings. Allison Rushing, one of the nominees on the schedule for the hearing this week, has not practiced the requisite 12 years to meet the ABA’s Qualified threshold and has not even received a rating for the Committee members to consider.
  4. Lack of Thorough Vetting: The White House has sacrificed thorough vetting in favor of rapidly confirming nominees. Numerous nominees have had embarrassing writings and speeches come to light post-nomination. Brett Talley, nominated to serve in the U.S. District Court for the Middle District of Alabama, had to withdraw after failing to include in his questionnaire Senate Judiciary Questionnaire his extensive blogging arguing the purity of the KKK’s founding.
  5. Stacking Hearings: Senators only have five minutes to question each judicial nominee included in a hearing. To speed up confirmation of the President’s judicial nominees, Senator Grassley has already scheduled seven hearings that included multiple U.S. Circuit Court of Appeals nominees. By comparison, this only occurred three times in the entirety of President Obama’s tenure.

For more information, view our fact sheet, Judicial Nominations: A Broken Process and this page of other resources.