With his expected nomination Monday of 10 conservative judges to the federal courts, President Donald Trump is reviving the long-running judicial wars with Democrats. And the two picks likely to rankle Democrats the most are the ones they have the most leverage to block.
Senate Democrats have few powers to prevent judges from getting confirmed to their lifetime appointments, due to rules changes they pushed through in 2013 that eliminated the 60-vote threshold for nearly all nominations. But Democratic senators can wage a silent filibuster of sorts against nominees from their home states through the so-called blue slip process.
Two of the 10 judicial nominees that the White House unveiled Monday were on Trump’s short list of potential Supreme Court justices during the campaign: Michigan Supreme Court Justice Joan Larsen, who will be nominated to the 6th Circuit Court of Appeals, and Justice David Stras, who sits on the Minnesota Supreme Court and is Trump’s pick to sit on the 8th Circuit.
Minnesota and Michigan are represented by two Democratic senators. That gives Sens. Amy Klobuchar and Al Franken, who hail from Minnesota, and Michigan Sens. Debbie Stabenow and Gary Peters what amounts to veto authority over the nominees, who are already drawing objections from other Democrats.
“We know that there is a prized list now from [conservative] special interest groups and one of them is now on the Supreme Court,” Sen. Dick Durbin (D-Ill.), the second-ranking Senate Democrat, said Monday, referring to recently-confirmed Supreme Court Justice Neil Gorsuch. “If that’s the way the president is going to choose the leaders of the judiciary, we need to ask some probing questions about why these special interest groups believe these particular judges are the best choices.”
Of the blue-slip powers, Durbin added: “As long as we have the authority, we’ll use it if necessary.”
In a statement, Franken said he was “concerned” that Stras’ nomination was "the product of a process that relied heavily on guidance from far-right Washington, D.C.-based special interest groups — rather than through a committee made up of a cross-section of Minnesota’s legal community." Senate Minority Leader Chuck Schumer (D-N.Y.) accused Trump of “continuing to outsource the judicial selection process to hard right, special interest groups” rather than consulting with senators. Democrats have long been critical that Trump’s Supreme Court short list was crafted with input from the conservative Heritage Foundation and Federalist Society.
A spokesman for Franken said the senator was “not meaningfully” consulted and the White House declined the Minnesota senator’s recommendations to fill the vacancy at the St. Louis-based appeals court. A separate Senate Democratic aide said the Trump administration notified, rather than consulted, the senators, declining to ask for input before announcing the nominee.
Lack of consultation on judicial nominees goes against traditional White House practice, say veterans of the nominations process.
“In the Obama administration, people would not return their blue slips simply because they felt they weren’t consulted efficiently,” said Christopher Kang, who served as deputy counsel to former President Barack Obama.
Kang, now the national director at the National Council of Asian Pacific Americans, said 17 judicial nominees during Obama’s tenure were blocked because home-state senators declined to give approval, or return his or her blue slip to the Judiciary Committee.
Battles over judicial nominations are often caustic. But tensions have been especially high following the contentious battle to get Gorsuch installed at the Supreme Court and Trump’s frequent attacks on the judiciary, particularly after judges produce rulings against his executive orders.
Monday’s announcement of Trump’s 10 new conservative nominees came the same day that the 4th U.S. Circuit Court of Appeals considered the legality of Trump’s revised travel ban.
Democrats will retain the blue-slip leverage, at least for now. A broad swath of Senate Republicans is opposed to doing away with the tradition, even as GOP senators blew up the old filibuster rules for Supreme Court nominees while they shepherded Gorsuch through to confirmation earlier this year.
Some prominent conservatives, such as conservative radio host Hugh Hewitt, are urging Senate Judiciary Chairman Chuck Grassley (R-Iowa) to ignore the century-old blue slip tradition. But Grassley said he plans to abide by it.
In addition to Grassley, more than a half-dozen other Republicans on the judiciary panel said in interviews that they have no plans to ditch blue slips. That’s the case even though doing so would allow Trump to more easily install conservative judges, particularly in states with two Democratic senators
“That’s been the traditions of the Senate, that home-state senators have a say,” said Sen. Lindsey Graham (R-S.C.), a senior member of the committee. “I’m not about to give up my rights as a senator to have a say about district court judges who’ll represent my constituents long after the president’s gone.”
Senate Majority Whip John Cornyn, who has 11 district court vacancies in his home state, along with two empty appellate court seats, called the blue slip an “equal opportunity irritant.”
“When it’s an impediment, then people don’t like it. When it’s helpful, people like it,” Cornyn said. “What it does [is], it provokes a negotiation, which I don’t think is an altogether bad thing.”
Sens. Thom Tillis (R-N.C.), Mike Crapo (R-Idaho), John Kennedy (R-La.) and Jeff Flake (R-Ariz.) offered a similar defense of the practice.
“We used it effectively — myself with Sen. [John] McCain — to negotiate with the Obama administration on judges,” Flake said. “I like that tradition.”
Trump inherited a significantly higher number of lower-court vacancies than his two immediate predecessors, handing him a significant opportunity to reshape the federal judiciary for generations. Obama faced about 50 lower court vacancies, while former President George W. Bush inherited about 80 open judgeships.
For that, Trump largely has Mitch McConnell to thank. During the Kentucky Republican’s first two years as majority leader, only 20 district and circuit court judges were confirmed by the Senate, marking the slowest pace of judicial confirmations by the chamber in more than six decades.
Before Monday, Trump had nominated just one candidate for the 129 vacancies currently hampering the federal judiciary: Amul Thapar to the Sixth Circuit Court of Appeals, a sitting federal judge who coasted through his 90-minute confirmation hearing in late April.
Even with the announcement Monday of 10 new nominees, other Republicans are eager for the Trump White House to send more candidates for the judiciary, particularly for vacancies in their home states.
“We’re concerned,” said Sen. Orrin Hatch (R-Utah), a senior member of the Judiciary Committee. There is one judicial vacancy in Utah, which has been open since 2014. “We’ve already made our suggestions. They know that we’re interested in getting that taken care of.”