President Donald Trump is on his way to leaving a conservative imprint on the federal judiciary with the confirmation of Amul Thapar, his first judge to the lower courts, and a renewed willingness from Republicans to sidestep a century-old custom involving judicial nominees.
The Senate voted 52-44 on Thursday to install Thapar, a favorite of Senate Majority Leader Mitch McConnell (R-Ky.), at the Cincinnati-based Sixth Circuit Court of Appeals. The confirmation marked the first judicial nominee aside from now-Justice Neil Gorsuch to the Supreme Court for Trump, who came into office with an usually higher number of judicial vacancies.
“He has a reputation as a qualified judge with an impressive legal mind,” McConnell said of Thapar. “He will fairly apply the law to all who enter his courtroom because, in Judge Thapar’s own words, ‘the most important attribute of a judge is to be open-minded and not to prejudge a case without reading the briefs, researching the law, and hearing from the parties.’”
In addition to Thapar, Trump has nominated 10 prospective judges to the lower courts. Two in particular could trigger a partisan battle over the so-called blue slip rule – a longstanding custom of the Senate Judiciary Committee that says the panel will not advance a judicial nominee without the consent of both the candidates’ home-state senators.
The committee’s chairman, Sen. Chuck Grassley (R-Iowa), said recently that the blue slip rule would be much stricter for district court judges that cover just a single state, rather than the more powerful circuit court nominees that span a broader region. And other Republicans agree, despite comments earlier this month that signaled the GOP would stand by that tradition.
“I like the blue slip tradition as it pertains to district court judges, but I never thought it applies to circuit court,” said Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee.
Democrats have already started fighting back, arguing that the Judiciary Committee strictly abided by the blue slip rule under former President Barack Obama and that Trump should be treated the same way. Under Obama, 17 judicial nominees – 11 for the district court and six for the circuit courts – never advanced because a blue slip wasn’t returned. One of the unreturned blue slips was for the vacant Sixth Circuit seat that will be filled by Thapar after his confirmation on Thursday.
And liberals are waging another war against the next round of Trump’s nominees to the courts. Thapar, like Gorsuch before him, was drawn from a list of potential Supreme Court nominees released by Trump during his campaign with input from the conservative Federalist Society and Heritage Foundation.
“As in Justice Gorsuch’s case, those radical groups are committed to doing whatever it takes to make sure that Judge Thapar sits on the nation’s highest courts,” Sen. Elizabeth Warren said in a floor speech Wednesday night. “For those groups, the goal is not just to get a few ultraconservative judges on our federal courts. It is to capture the entire judicial branch.”