By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
Despite Trump’s failure to fill political appointments– which I’ve argued here should thrill rather than upset Trump opponents– his administration, under the direction of White House counsel Don McGahn, is moving full speed ahead to nominate candidates to fill vacant judgeships.
Last Thursday, Trump announced Seventh Wave of Judicial Candidates, including three appellate nominations, and thirteen district court picks.
To date, Trump’s greatest judicial win has been securing the confirmation of Neil Gorsuch as an associate justice of the US Supreme Court– filling the seat left empty after the death of Antonin Scalia. Senate Republicans had successfully blocked the nomination of Merrick Garland.
Above the Law’s David Lat posted Friday on Trump’s success on the judgeship front:
…regardless of his administration’s other troubles, President Trump is doing a great job on judicial nominees — and his success might be due to, rather in spite of, his shortcomings as a person and politician.
Lat failed to elaborate on this remark, however.
Now judgeships are lifetime appointments, and many of those selected will likely to continue to serve long past Trump’s tenure as President. The headline of a July Business Insider article, Trump is quietly moving at a furious pace to secure ‘the single most important legacy’ of his administration, underscored this point:
“This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware, a member of the Senate Judiciary Committee, told Business Insider. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, will have a significant impact on the shape and trajectory of American law for decades.
“I do think this deserves more attention given the consequence, the significance of what will eventually be a wholesale change among the federal judiciary,” he continued.
Part of the reason Trump been able to nominate so many federal judges is that there are an unusually large number of such positions unfilled. Over to Business Insider again:
The furious pace of nominations come as Trump faces an impressive number of vacancies to fill. As of [July 27], the federal bench had 136 vacancies…. In August 2009, Obama faced 85 vacancies on the federal bench.
Coons attributed the discrepancy in vacancies to “unprecedented obstruction by the Republican majority in the Senate in the latter years of the Obama administration” that led to many of these vacancies remaining unfilled.
Jerri-Lynn here: Currently, 144 federal judgeships are vacant.
Blue Slip Process Slows Some Candidacies
Last week’s latest Trump nominations were announced as Democratic Senators have started taking procedural steps to block some nominees. Since 1917, the Senate has followed a process under which a state’s Senators traditionally must return a blue slip of paper, endorsing any federal judicial nominee from their home state, in order for the nomination to proceed. If the Senator fails to return the blue slip, or does so with some indication of disapproval, the nomination may be, at minimum delayed, or even blocked outright.
This system is both long-standing, albeit not absolute. In the past, some Senate Judiciary Committee chairs would not schedule hearings, in the absence of a positive blue slip, while others considered its lack as important but not dispositive, according to Hugh Hewitt writing in the Washington Post. Yet in recent years, the system has allowed individual Senators virtual veto-power over a federal judicial nomination for any individual from the state the Senator represents.
Last week, Senator Al Franken elected not to return a blue slip for David Stras, a nominee from for an open spot on the United State Court of Appeals for the 8th Circuit. According to this Politico report, Franken opposes Trump judicial nominee, setting up procedural clash:
“Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box,” Franken said in a lengthy statement outlining his opposition to Stras. “The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.”
Franken also took aim at the process by which Stras — who currently sits on the Minnesota Supreme Court — was selected. He argued that the White House had already settled on Stras before consulting with Franken about the vacancy.
Franken’s move was followed by an announcement later in the week that Senators Ron Wyden and Jeff Merkley of Oregon would not return blue slips for Ryan Bounds, a nominee for a seat on the United States Court of Appeals for the Ninth Circuit, according to this Politico article, Democrats prepare to block another Trump judicial nominee:
Wyden and Merkley stressed in the letter, addressed to White House counsel Don McGahn, that they had already told the administration they would not greenlight any candidate that had not been approved by a bipartisan judicial selection committee in the state.
“Unfortunately, it is now apparent that you never intended to allow our longstanding process to play out,” the Democrats wrote to McGahn in the letter, obtained by POLITICO. “Instead, you have demonstrated that you were only interested in our input if we were willing to preapprove your preferred nominee.”
“Disregarding this Oregon tradition returns us to the days of nepotism and patronage that harmed our courts and placed unfit judges on the bench,” Wyden and Merkley added. “The judicial selection process is not a rubber stamp, and the insinuation that our offices were purposely delaying the process is an indication of the partisanship with which you are pursuing this nomination.”
The End of Blue Slips?
The blue slip process is a matter of longstanding tradition, and it is uncertain whether the Senate Judiciary Committee would tamper with it in order to consider a Trump nominee over the opposition of the nominee’s home state’s Senator. Senator Charles Grassley, chair of the Senate Judiciary Committee, reportedly regards the blue slip process as less important for district court judgeships (a point of view also shared with some other Republicans). Whether he would elect to schedule hearings on appellate court nominees who didn’t secure blue slip approval is not yet clear. Republicans, have majority control of the Senate and could, at least in theory, confirm judges even over strenuous Democratic objections.
Yet to date, as reported by Business Insider in A Democratic senator’s obscure move highlights the biggest roadblock Trump faces in his quest to remake the courts:
While the denial of a blue slip does not legally restrict a judge from being approved, Glenn Sugameli, an attorney who is an expert on judicial nominations, told Business Insider in an email that “no circuit court nominees have been confirmed over objection of one (or two) home state senators — including under Obama.”
Bottom Line
Hewitt and Lat have separately called for elimination of the blue slip system. Even if Grassley opts neither to eliminate the system nor to limit its use, Democrats are unlikely to stymie more than at best a handful of Trump’s nominees put forward thus far. Most Trump nominees will probably soon be confirmed, with the timetable to be determined by how quickly the Senate Judiciary Committee is able to schedule hearings. Federal judgeships are for life, with no mandatory retirement age, leaving many of Trump’s judicial picks– once confirmed– to continue to preside over courtrooms for decades to come.
