Grassley Op-Ed: Trailblazing Judges Confirmed Despite Delay Tactics
Trailblazing
Judges Confirmed Despite Delay Tactics
By Senator
Chuck Grassley
In Law360 on Monday, March 12,
2018
When
President Donald Trump was inaugurated on Jan. 20, 2017, our federal courts had
more than 100 vacancies, including one for the United States Supreme Court. As
chairman of the Senate Judiciary Committee, I was pleased that President Trump
intended to nominate our country’s most talented men and women in the legal
profession to the federal bench.
Nominating
federal judges is one of the president’s most important constitutional duties,
because these life-tenured judges often serve for decades on the bench. The
most lasting legacy a president leaves on the American legal landscape is the
judges committed to the Constitution and the rule of law.
A
little more than one year later, we have achieved unparalleled success in
confirming outstanding judges to the federal bench. After President Trump’s
inauguration, the president turned his attention to selecting a worthy
successor to the late Justice Antonin Scalia on the Supreme Court. His nominee,
Neil M. Gorsuch, was the perfect choice to succeed Justice Scalia, long one of
the court’s leading defenders of the Constitution and the rule of law. It was a
privilege to preside over Justice Gorsuch’s confirmation hearing and to cast my
vote for his confirmation on April 7, 2017.
Despite
Justice Gorsuch’s impeccable qualifications — the American Bar Association
rated him unanimously well-qualified — Senate Democrats engaged in the first
successful filibuster of a Supreme Court nominee in American history. This
forced the Republicans to abolish the filibuster for Supreme Court nominees,
following a precedent established by Democrats in 2013 when they abolished the
filibuster for lower court nominees. In the end, Justice Gorsuch was confirmed
to the Supreme Court. Only three Democratic senators voted for his
confirmation.
The
Senate also confirmed 12 judges to the courts of appeals in 2017, a record for
the first year of any presidency and four times the number of appellate judges
confirmed in the first year of President Obama’s presidency. These judges, all
distinguished by stellar legal and academic credentials, enjoyed widespread
support in the legal community. The courts of appeals are the courts of last resort
for the vast majority of thousands of cases in our federal court system. It has
been among my highest priorities, and Senate Majority Leader Mitch McConnell’s,
to confirm these extremely well-qualified nominees.
Diversity
on the Bench
A
remarkable group of trailblazers now fills the appellate bench. Amul Thapar,
the first-ever Indian-American federal judge when he was confirmed to the
district court in 2007, is now the first-ever Indian-American to serve on the
Sixth Circuit. James Ho, a former law clerk to Justice Clarence Thomas,
immigrated to this country from Taiwan when he was a toddler. He was the first
Asian-American to serve as solicitor general of Texas and is now the first
Asian-American to serve on the Fifth Circuit. And recently confirmed is Eighth
Circuit Judge David Stras, whose grandparents are survivors of the Holocaust.
We
have also confirmed an impressive number of women to the courts of appeals.
Among these outstanding new judges is Judge Amy Coney Barrett, a professor at
Notre Dame University Law School and a former law clerk to the late Justice
Scalia. Judge Barrett is a proud Catholic and mother of seven children, two of
whom were adopted from Haiti. Despite outrageous questioning from Democratic
senators suggesting that Judge Barrett’s Catholic faith called into question
her impartiality, Judge Barrett sailed through the rest of her confirmation
hearing and became the first woman to ever hold a Seventh Circuit seat in
Indiana.
Confirmed
that same week was Judge Allison Eid, a former law clerk to Justice Thomas and
state supreme court justice, who became the first female judge to ever hold a
Tenth Circuit seat in Colorado. The Senate also confirmed to the Sixth Circuit
Judge Joan Larsen, a former law clerk to Justice Scalia and a Michigan Supreme
Court justice. And, on Feb. 27, Eleventh Circuit Judge Lisa Branch, formerly of
the Georgia Court of Appeals, joined this prestigious list. As of the end of
February, four women nominated by President Trump to serve as circuit court judges
have been confirmed by the Senate — compared to only one at the same point
during President Obama’s first term.
Waiting
in the wings are two more nominees who will be historic “firsts” to their
bench. Karen Gren Scholer, born in Tokyo to a Japanese mother and American
father, is a former Texas state court judge. She would be the first
Asian-American woman confirmed to a district court seat in the Fifth Circuit.
Current U.S. Magistrate Judge Terry Fitzgerald Moorer, if confirmed, will
become the first African-American to serve on the Southern District of Alabama.
A lifelong public servant, Judge Moorer was an assistant U.S. attorney for 17
years and a member of the Alabama National Guard until he retired as colonel in
2014. For his service during Operation Iraqi Freedom, he was awarded the Bronze
Star.
Obstruction
From Democrats
It
has been especially remarkable that we have been able to confirm so many judges
in light of unprecedented obstruction from Senate Democrats. As of the end of
February, the Democrats have required the Senate to hold cloture votes to end
debate for 28 of Trump’s judicial nominees. They have required this
time-consuming process even for nominees with widespread support who are
ultimately confirmed by substantial majorities. In contrast, Senate Republicans
forced a cloture vote for only one judicial nominee at the same point in
President Obama’s presidency. Moreover, the Democrats are insisting on multiple
hours of debate on each nominee even when only a fraction of that time is actually
used for debate. This has resulted in a bottleneck of as many as 33
committee-approved judicial nominees awaiting votes by the full Senate at a
given time.
This
procedural block is not the only way Senate Democrats have attempted to thwart
the confirmation of judicial nominees. Despite the fact that President Trump
has nominated individuals with broad bipartisan support from their home states,
only two of his circuit court nominees confirmed in 2017 received the support
of more than 60 senators. The Democrats’ unprecedented lockstep opposition to
nearly all of President Trump’s nominees demonstrates the hold that liberal
special-interest groups have over the party.
Senate
Democrats have also recently tried to subvert a century-old tradition of the
Senate Judiciary Committee — known as the blue slip courtesy — into a new
weapon of obstruction. Customarily, when the President nominates an individual
to the federal bench, the chairman of the Judiciary Committee will issue blue
slips to the nominee’s home-state senators. The purpose of the blue slip
courtesy is to obtain insights about a nominee and ensure that the White House
is consulting with home-state senators before choosing a nominee. Under the
policies of all but two of my 18 predecessors, a negative or unreturned blue
slip did not prevent the nominee from receiving a hearing. My immediate
predecessor, Senator Patrick Leahy, was among the only two previous chairmen to
strictly require two positive blue slips before holding a hearing. However, Senators
Ted Kennedy and Joe Biden adhered to the historical policy when they were
chairmen of the Senate Judiciary Committee.
I
have been clear that I value and am maintaining the blue slip courtesy, just as
Senators Kennedy and Biden did. For circuit court nominees, a negative or
unreturned blue slip will not necessarily prevent a nominee from receiving a
hearing, unless the White House has failed to consult with home-state senators.
I am less likely to hold hearings for district court nominees without blue
slips from both home-state senators. The reason for this distinction is simple:
Circuit courts cover multiple states. There is less reason to defer to a single
senator’s opinion on a circuit court nominee when the judge’s decisions will
impact residents of multiple states.
But
I will not allow the blue slip to be used as a tool of obstruction. It is not
meant to give a single senator unilateral veto power over nominees for
political or ideological reasons. I recently held hearings for two highly
qualified nominees despite the lack of two positive blue slips: Judge Stras
(Minnesota) and Michael Brennan (Wisconsin). In both cases, the White House
engaged in pre-nomination consultation with home-state senators and considered
their preferred nominees. Despite that consultation, and despite my best
efforts to convince them otherwise, two Democratic senators withheld their blue
slips. I therefore held hearings for both of these nominees.
Some
Democrats have adopted an ahistorical view of the blue slip because they no
longer can use the filibuster to block nominees they oppose. In 2013, the
Democrats abolished the filibuster for lower court nominees. At the time, they
argued that 41 senators should not be able to block judicial nominees with
majority support. Now that they are in the minority and unable to filibuster
nominees, the Democrats are arguing that one senator should be able to block a
nominee before that nominee has even received a hearing. This is as absurd as
it is disingenuous.
It
is apparent that the White House has been engaging in good-faith consultation
with home-state senators. Eleven Democratic senators have returned their blue
slips for President Trump’s appeals court nominees. Two more intend to return
their blue slips for a recently announced nominee in Hawaii. So far, the record
shows this is a White House that respects the role of home-state senators in
the judicial selection process. But some home-state senators are trying to use
their blue slips as vetoes of the president’s nominees, and some are refusing
to engage in consultation altogether. I won’t allow these tactics to undermine
the president’s constitutional responsibility to appoint qualified judges to
the federal bench.
At
the same time, the Senate is not, and has never been, a rubber stamp for the
president’s judicial nominees. I personally called on the president to withdraw
the nominations of two individuals who were not qualified to serve as federal
judges. And a few other prior nominees either withdrew or were not renominated.
The privilege of serving as a federal judge is an immense responsibility, and I
am confident that the rigorous confirmation process ensures that only the most
qualified individuals serve on our nation’s federal courts.
I
am proud of the record-setting number of highly qualified nominees we confirmed
to the federal courts in 2017. I look forward to continuing to work with the
White House and all my Senate colleagues to repeat this success in 2018. The
outstanding men and women we are confirming to the federal bench will continue
to reflect the core principles enshrined in our Constitution.
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