Leading Republican Forces Confirmation Hearings on Wildly Unqualified Judge Nominees.
Senate Judiciary Committee Chairman Chuck Grassley is burning the blue slip for some judicial nominees.
The Iowa Republican will announce later Thursday that he is going ahead with a confirmation hearing for a nominee to the powerful appellate courts despite the objections of a Democrat who had been blocking the nomination for months.
The move will likely escalate the judicial wars in the Senate.
Grassley says he has scheduled hearings for David Stras, a nominee to the 8th U.S. Circuit Court of Appeals. Sen. Al Franken (D-Minn.), Stras’ home-state senator, said earlier this year that he would not return the so-called blue slip for Stras because of his conservative ideology.
“The Democrats seriously regret that they abolished the filibuster, as I warned them they would,” Grassley plans to say in a floor speech. “But they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.”
The blue slip asks whether a senator approves or disapproves of a nominee.
Along with the Stras hearing, Grassley will announce that he will hold a hearing for Kyle Duncan, picked by President Donald Trump to serve on the 5th Circuit. His home-state senator, Sen. John Kennedy (R-La.), has returned a blue slip, but he noted that he was undecided on the nomination as he submitted the paper.
The blue slip process is a century-old Senate tradition that says the Judiciary Committee doesn’t hold a confirmation hearing for potential judges without approval from permission from the candidate’s home-state senators. Senators return an actual blue slip to the committee.
It is also one of the Democrats’ last major leverage points over Trump’s judicial nominees, after they voted to kill the filibuster for most nominations four years ago. The Republicans abolished the 60-vote threshold for filibusters on Supreme Court picks earlier this year.
At least four Democrats have said this year they will not return blue slips for Trump’s circuit nominees: Franken, Sens. Ron Wyden and Jeff Merkley of Oregon, and Tammy Baldwin of Wisconsin.
Previous committee chairs have rigidly adhered to the blue-slip rule for district court nominees, whose courts span just a single state. But they have been more flexible for the more influential and powerful circuit courts.
“I’ll add that I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators,” Grassley said. “But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.”
In his speech Thursday, Grassley will note that just two out of 18 previous chairmen allowed one senator “to wield veto power over a nominee” — including former Vice President Joe Biden, a former Judiciary Committee chairman himself.
Grassley will also argue that the blue slip is “not meant to signify the senator’s ultimate support or opposition to the nominee," but merely whether the person should receive a hearing.
“Some of my Democratic colleagues and left-wing outside groups mistakenly assert that the blue slip affords a home-state senator veto power over a nominee,” Grassley said. “That is not true.”
Ideology isn’t the sole reason why some Democratic senators have tried to obstruct a handful of Trump judicial nominees. For example, Wyden and Merkley said the White House went against Oregon’s standard tradition of using a bipartisan nominating commission to come up with potential candidates.
“I won’t allow the White House to just steamroll home-state senators,” Grassley will say. “But, as I’ve said all along, I won’t allow the blue slip process to be abused. I won’t allow senators to prevent a Committee hearing for political or ideological reasons.”
President Donald Trump has nominated 50 candidates to lifetime appointments to the federal bench — including a man who asserted transgender children were evidence of “Satan’s plan,” one deemed unqualified by the American Bar Association and a handful of prolific bloggers.
And the GOP has unanimously stuck by Trump’s judges. Senate Republicans have cleared judicial nominees at a comparatively rapid clip this year — even as the conservative base has complained they’re not moving fast enough — and are planning to pick up the pace even more in the coming months.
Among the more eyebrow-raising judges is Charles Goodwin, who has been nominated to the federal bench in Oklahoma. He is the first judicial nominee since 2006 to earn a “not qualified” label from the American Bar Association, which has screened judicial candidates since the 1950s. (It’s possible Barack Obama considered judges the ABA would have found “not qualified,” but his administration worked with the ABA to evaluate nominees before they were announced, something Trump has declined to do.)
Both of his Republican home-state senators, James Lankford and Jim Inhofe, say they’re still confident Goodwin is adequately qualified to serve on the bench and dismissed the ABA’s findings.
“He’s been a very solid jurist,” Lankford said. “We’re trying to find out the whys [of the ABA rating]. Of course, they’re very secretive about the process and why they make the decisions they do.”
Inhofe added: “I personally really vetted him well and took this very seriously. There’s got to be some reason for [the ABA ratings] that I don’t understand.” The ABA had reviewed candidates during the Obama administration before they were nominated, so it’s possible the Obama White House considered nominees found “not qualified” but they were never made public
The senators' defense underscores Republicans’ commitment to remaking the federal judiciary for generations to come, even as the Senate GOP and Trump have butted heads on other issues and struggled to carry out their broader legislative agenda.
“The judge story is an untold story,” Trump said Monday at a news conference with Senate Majority Leader Mitch McConnell. “When you think about it, Mitch and I were saying, that has consequences 40 years out, depending on the age of the judge, but 40 years out.”
No Republican senator has voted against Trump’s judicial nominees so far this year, either in committee or in confirmation votes on the floor.
The Senate has confirmed seven judges, including four to the powerful appellate courts and Supreme Court Justice Neil Gorsuch. In comparison, Barack Obama had just three judges confirmed, including Supreme Court Justice Sonia Sotomayor, at this point during his first year in office.
Even at the committee level, Republicans have been moving more quickly to fill the judicial vacancies.
As of Tuesday, the Senate Judiciary Committee will have held confirmation hearings for 26 district and circuit court nominees. At this point in Obama’s presidency, 14 of those nominees had hearings, according to Christopher Kang, who worked on nominations in the Obama White House.
Trump came into office with not just an open Supreme Court seat but a historic number of vacancies on the federal bench, thanks in major part to McConnell’s dramatic slowdown of judicial confirmations in the final two years of Obama’s presidency.
Trump’s slate of judicial nominees has enthralled the right.
“We are thrilled with the nominees that we have been seeing coming out of this administration,” said Carrie Severino, the chief counsel of the conservative advocacy group Judicial Crisis Network. “It’s an issue that unites Republicans of all stripes.”
Severino’s group is pressuring the GOP-led Senate to more expeditiously confirm judges and has been privately communicating with McConnell’s aides about the issue since threatening to wage an ad campaign against the majority leader last week.
Soon after, McConnell reiterated his desire to do away with the century-old “blue slip” tradition, in which senators can exercise veto power over judges nominated from their home states. He stressed that stance at the White House Monday, saying blue slips for appellate picks should “simply be a notification of how you intend to vote.” Otherwise, he added, Democratic senators could “blackball” a large portion of Trump’s circuit court nominees.
Democrats dismiss conservative complaints that the Senate is moving at a plodding pace on judicial nominations.
“The only fact conservatives can honestly cite is the high number of vacancies — but that is immediately undercut because Republicans are the ones who created it by confirming only 22 judges last Congress, the fewest since President Truman, including only two circuit judges,” Kang said.
Democrats and outside liberal groups have mounted a campaign to derail a slew of those candidates, particularly nominees who they say have shown a hostility to the rights of minorities.
Chief among their targets is Jeff Mateer, nominated to a federal judgeship in Texas, who in a past speech referred to transgender children as proof of “Satan’s plan.” Mateer, according to comments unearthed by CNN, has also implied that the 2015 Supreme Court decision legalizing gay marriage is “disgusting” and could lead to polygamy or bestiality.
Sen. Ted Cruz (R-Texas) has said he still stands by Mateer’s nomination. But Senate Majority Whip John Cornyn (R-Texas) has publicly voiced some concerns, particularly that Mateer didn’t disclose the contents of those speeches before he and Cruz ultimately recommended that he be nominated.
“That’s a big problem,” Cornyn told Politico earlier this month. “That may not be the only problem, but that’s a big problem.”
The second-ranking Senate Republican said he is sympathetic to Mateer’s right to speak freely, particularly if some of his personal views stem from his religious convictions.
“But the problem is, for me, is the failure to disclose the information up front so we can then talk about that,” Cornyn said. “We want to make sure, fundamentally, everybody has access to fair and equal justice and it’s important that, notwithstanding the opinions that people may have about various subjects, that they separate that from what their job as a judge would be.”
A White House spokeswoman pointed to Trump’s comments on Monday when asked whether the administration still supports the nominations of Mateer and Goodwin.
But Severino defended them, calling the ABA a “liberal special interest group” and calling the campaign against Mateer “part of the same witch hunt” waged against Amy Coney Barrett, a 7th Circuit nominee whose traditional Roman Catholic faith had come under scrutiny from Democratic senators.
Democrats have few tools left at their disposal to stop confirmation of these lifetime appointments, after voting to eliminate the 60-vote threshold for nearly all nominations four years ago and watching Republicans eliminate the filibuster for Supreme Court nominees earlier this year. Still, they’re working to mount whatever protest they can.
“I think the very questionable caliber of President Trump’s judicial nominees demonstrates his contempt for the rule of law and the quality of the American judiciary,” said Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee. “It’s a pattern that emerges clearly from his public statements and through his nominees that he puts politics first in catering to the far right and quality eighth or ninth, if at all.”