President Donald Trump and Senate Majority Leader Mitch McConnell may not be on the best of terms after a failure to pass a healthcare overhaul this summer and ahead of expected fiscal fights this fall. But they have at least one shared mission: confirming a bevy of federal judges.
Their effort, along with today’s relaxed filibuster rules, could give conservatives an opportunity to reshape the federal bench even more than in the 1980s when President Ronald Reagan set a modern standard for maximizing a potential judicial legacy.
McConnell’s emerging role reprises his moves last year guaranteeing that the vacancy caused by the death of Supreme Court Justice Antonin Scalia was saved for Trump and resulted in recent appointee Neil Gorsuch, a former Colorado-based US Appeals Court Judge. McConnell blocked action in 2016 on President Barack Obama’s choice of Merrick Garland, chief judge of the US Appeals Court in Washington, DC.
A six-term senator from Kentucky, McConnell has continued to steer the stocking of the federal bench in a way that sets him apart from previous Senate majority leaders. He remains a point man for outside conservatives advocating for favored candidates, and he recently won swift confirmation of two Kentuckians for US appeals court judgeships.
Senate Democrats and their liberal allies have been scrutinizing the records of Trump’s nominees — about three dozen to date — aware that many would fill long-pending vacancies for which Senate Republicans blocked Obama’s nominees.
“Let me be clear: Democratic senators are doing their due diligence in reviewing these nominees,” California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee said in July, adding “There’s been no obstruction.” She was responding to Republican complaints that Democrats were not moving fast enough in the confirmation process.
With their majority in the Senate, Republicans already dominate the process. That majority clout was enhanced in 2013 when the Senate changed its rules to make it more difficult for the minority party to filibuster presidential nominees. Initiated by Democrats who were frustrated at the time by Republican stalling on Obama nominees, it allows a simple majority to cut off protracted Senate debate rather than requiring a supermajority of 60 votes, as was the practice for decades.
The rule change did not cover Supreme Court nominees, but Senate Republicans lifted that exemption in April, when Democrats tried to filibuster the Gorsuch nomination.
So now any judicial nominee can win confirmation with a simple Senate majority. That gives Trump a greater chance to influence the federal bench, including the Supreme Court, than any other president in recent history.
Democrats’ countermeasures in this latest chapter of the judicial confirmation wars may emerge in upcoming weeks as the Senate acts — or holds off — on pending nominees.
Some Democratic senators, frustrated that the White House has not consulted them on candidates from their home states, have signaled that they may take considerable time to assess a nominee or outright refuse to return the custom of what’s known as the “blue slip,” arising from the Senate tradition ensuring the nominations not move forward without the consent of home-state senators.
On Tuesday afternoon, Democratic Senator Al Franken announced he would oppose a Trump appeals court nominee from his home state of Minnesota, David Stras, potentially setting up a major battle in the Senate.
Some Republicans have urged Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, to move on nominees even when home-state senators do not give a candidate the nod. At a local town hall session in May, Grassley wryly observed that such sentiment against the long-standing “blue slip” courtesy is the opposite of Senate Republicans’ views in 2009 when Democrat Obama had become president and was ready to nominate judges.
High stakes for lifetime appointments
Federal judges are appointed for life and serve long after a president leaves office, making bench appointments one of the executive’s most lasting legacies.
The nine spots of the Supreme Court draw the most attention, but the 179 seats on the federal appeals courts can be nearly as consequential because most cases never make it up to the highest court. (The justices have discretion over what they decide to weigh in on, and resolve only about 70 cases annually.) The full US judiciary is rounded out by 673 positions on the district courts and 9 seats on the Court of International Trade.
There currently are 124 vacancies for lifetime positions pending across the judiciary.
During his two terms, Reagan appointed about 400 judges, according to figures from the Administrative Office of the US Courts. He named three new Supreme Court justices and elevated Associate Justice William Rehnquist to chief justice. Equally consequential, Reagan made 83 lifetime appointments to the courts of appeals.
None of the subsequent two-term presidents reached those numbers: Bill Clinton appointed two Supreme Court justices and 66 appeals court judges; George W. Bush appointed two justices and 63 appeals court judges; and Barack Obama appointed two justices and 55 appeals court judges.
Enhancing Reagan’s sheer numbers was the impact of the jurists he chose. His legal team searched out young, prominent conservative thinkers, many from academia, who would set a tone for other jurists to limit individual rights and leave societal dilemmas to elected officials.
The Reagan judges set the nation on a path of less constitutional protection for women’s reproductive rights and racial affirmative action and overall diminished courts’ involvement in disputes over school desegregation, prison conditions and the environment.
Reagan’s Republican successors — George H.W. Bush and George W. Bush — to varying degrees, continued that emphasis with their choices. The Trump White House so far appears to be following Reagan’s playbook. Among the early choices for US appeals courts are several who served as law clerks to conservative Justices Scalia or Clarence Thomas and taught in law schools: Amy Coney Barrett of Indiana, Allison Eid of Colorado, Joan Larsen of Michigan, and Stras of Minnesota. Eid, Larsen and Stras are currently state court judges.
Their nominations are pending in the Senate Judiciary Committee; hearings for Barrett and Larsen are scheduled for Wednesday.
Franken made clear on Tuesday that he would try to block any action on Stras’ nomination to the US Court of Appeals for the 8th Circuit. He vowed not to return the home-state consent slip that traditionally has been needed to move any court nominee. Franken asserted that Stras would favor “powerful corporate interests over working people.” Last year Trump had included Stras on his list of potential nominees to the Supreme Court.
McConnell’s hands-on approach
Of the three appeals court nominees who have gained Senate confirmation so far, two are from McConnell’s home state of Kentucky. The new appointees to the US Court of Appeals for the 6th Circuit are: Amul Thapar, formerly a US district court judge who Trump interviewed for the Supreme Court seat that went to Gorsuch; and John Bush, a Louisville lawyer whose confirmation sparked controversy because he had written hundreds of political blog posts under a pseudonym deriding President Obama, disparaging gay rights and comparing abortion to slavery.
During Senate debate in July, Senate Democrats said his blog posts reflected a lack of judgment, as McConnell insisted Bush, who had worked with the senator against campaign finance regulations, would be fair on the bench.
In an April floor debate, McConnell said he became captivated by the Senate’s “advice and consent” power nearly a half century ago when as a Senate staffer he saw two of President Richard Nixon’s Supreme Court nominees voted down in 1969 and 1970.
McConnell also referred to his public vow on the night of Scalia’s February 13, 2016 death, that he would block any Obama-nominated successor. “When Justice Scalia passed away … the Senate exercised its constitutional advice-and-consent role by withholding its consent until after the election so the next president, regardless of party, could select the nominee,” McConnell said. “It’s a standard that I held to even when it seemed inevitable that our next president would be Hillary Clinton.”
McConnell also established an early record of fighting many of Obama’s appeals court nominees. In March 2009, soon after Obama had become president and while Democrats held a majority in the Senate, then-Senate Minority Leader McConnell joined other GOP senators in a letter warning Obama that Republicans would intensely screen his nominees and exercise their home-state interests
In the end, Obama won fewer appeals court confirmations than recent two-term presidents and had to wait longer for Senate approval of the nominees who cleared the process.
Russell Wheeler of the Brookings Institution’s Governance Studies Program, who has tracked judicial nominations for decades, said that the median time for Obama appeals court candidates, from nomination to confirmation, was 229 days. During George W. Bush’s tenure, the median was 219 days, during Clinton’s it was 139 days, and during Reagan’s tenure it was 45 days.
These days, McConnell and other Republicans are pushing for swift action on nominees, some wanting to toss out the “blue slip” tradition.
Grassley acknowledged, with some irony, the switch during that May town hall.
“In March of 2009 all of the Republican senators signed a letter to the Obama administration that we were going to use the blue slip,” he said. “Now I’ve got my Republican colleagues … a lot of them on the right that think we ought to do away with the blue slip.”
Update: This story has been updated to include Sen. Franken’s Tuesday announcement.
