How Grassley's Dirty Tricks Will Help the GOP Stack the Courts

Senate Republicans are reshaping the judiciary by abandoning the Senate customs they fought to keep under President Obama.
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Senate Republicans are reshaping the judiciary by abandoning the Senate customs they fought to keep under President Obama.
Senate Judiciary Committee Chairman Charles Grassley and Senator Orrin Hatch arrive at the Senate Judiciary Committee Full committee hearing on Capitol Hill in Washington, D.C., on July 26th, 2017.

Senate Judiciary Committee Chairman Charles Grassley and Senator Orrin Hatch arrive at the Senate Judiciary Committee Full committee hearing on Capitol Hill in Washington, D.C., on July 26th, 2017. 

President Donald Trump deployed Attorney General Jeff Sessions on Tuesday to announce his long-teased decision to end the Deferred Action for Childhood Arrivals policy, or DACA. Later that night, Trump suggested on Twitter that he might still wobble on the issue. Meanwhile, Republicans in the Senate have continued their no-holds-barred campaign to commandeer the judiciary. While the next administration can undo Trump's directive on DACA (if the courts don't), these federal judicial appointments are for life.

On Wednesday, the Senate Judiciary Committee launched a five-way nominations hearing. A multi-nominee hearing is not so unusual as a general matter. But this week, for the second time since Trump took office, the committee lumped two circuit court nominees into the same hearing—alongside two district court nominees and a controversial Department of Justice nominee. This second appellate double-header confirms Republican senators' hypocrisy: Under President Barack Obama, the GOP insisted on considering just one appellate judge per hearing, using this one-judge policy, along with other procedural maneuvers, to obstruct the confirmation process. Now, they ignore it.

The policy of considering one appellate nominee at a time preserves the integrity of the judicial nomination and confirmation process. Hearing two circuit court nominations in the same hearing precludes adequate review. The stakes are high: Most law is set by appellate judges, who are lifetime appointees. Each year, the Supreme Court decides just 180 or so of the 7,000 to 8,000 cases submitted for consideration. It hears arguments in only 80 of these cases. That means that the decisions of appellate courts, much more often than not, are definitive and final—and legally binding in all states within their circuit.

If Trump is running a judicial nomination mill, Republican Senators are wielding a rubber stamp. Presented with a historic number of open federal judgeships and anticipated vacancies, Trump has made more judicial nominations in the first 200 days of his presidency than either President George W. Bush or Obama over the same period.

Of Trump's 44 judicial nominations, including 11 appellate and 23 district court spots, eight have already been confirmed. With no filibuster to contend with and no compunctions about deviating from Senate custom, Republicans will be able to force Trump's picks through with a minimum of scrutiny.

Senator Al Franken attends the Democratic Policy and Communications Committee hearing in the Capitol building on July 19th, 2017, in Washington, D.C.

Senator Al Franken attends the Democratic Policy and Communications Committee hearing in the Capitol building on July 19th, 2017, in Washington, D.C.

Worse is ahead. By announcing he would not endorse Justice David Stras' nomination to the Eighth Circuit, Minnesota Senator Al Franken has forced a long-teased fight over senators' right to block home-state judicial nominees. Senators have previously exercised that prerogative by refusing to return the blue slip traditionally used for senators' reviews of judges, as Franken has, or returning a negative opinion. Republicans used this so-called "blue slip" custom freely to block Obama's nominees. Indeed, their obstructionism ensured the enormous number of vacancies Trump will now exploit—many of which could be considered stolen seats. Now, however, Senate Republicans are objecting stentoriously to home-state Democrats' exercise of the same privilege.

Republicans' abolishment of blue-slip custom would be their most predictable demolition of tradition yet. Conservatives have long called on Republican senators to abandon it. Senator Chuck Grassley, chairman of the Judiciary Committee, has previewed a convoluted interpretation of blue-slip custom that would allow the committee to ignore home-state objections to appellate but not district court nominees. And, of course, Senators Jeff Flake and Tom Cotton had already expressed support for just such a rule change.

Grassley would still be deviating from convention. Franken has argued that Trump had pre-selected Stras, contrary to the White House's obligation to consult home-state senators. In a report on the blue-slip process, the Congressional Research Service noted that, from 1989 to 2001, the chair's policy was that a negative blue slip was not a deal-breaker, "unless the Administration has not consulted with both home state senators," indicating the importance of the custom of consultation.

Fellow Minnesota Senator Amy Klobuchar declined to join Franken, a significant blow to his effort to block Stras. "[F]or the vast majority of the cases," her statement announced, Stras "has respected precedent and sided with the majority." Thus, Klobuchar concluded, he deserves a hearing. Recognizing Franken's perilous position and the stakes of a fight over the blue-slip process, Klobuchar also called on Grassley to respect blue-slip custom—unsubtly citing his previous insistence on the custom—and for the White House to provide additional candidates.

While the attack on the judicial confirmation process emanates from one party only, the issue is anything but partisan. These procedural battles will determine the integrity of the process by which the Senate confirms judges for life.

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