Former President Donald Trump and Republicans broke with previous Senate tradition to confirm 17 federal appeals court nominees over the objection of Democratic senators representing the states tied to their seats on the bench.
Now President Joe Biden and Senate Democrats are using that precedent in their effort to fill vacancies in red states to continue their record-breaking pace of judicial confirmations.
During the Trump administration, the Republican-controlled Senate Judiciary Committee – led then by Sen. Chuck Grassley of Iowa and later by Sen. Lindsey Graham of South Carolina – abandoned a requirement that circuit court nominees have the approval of their home state senators before moving forward through the confirmation process. (The practice – known as “blue slips” – has been maintained for district court nominees).
That move helped Trump and Republicans transform the federal judiciary. The circuit courts are the last step before cases reach the Supreme Court and are often the last word in determining how laws and regulations are eventually interpreted.
“There’s a lot of focus on President Trump’s record 54 circuit court confirmations,” said Chris Kang, the co-founder and chief counsel of Demand Justice, which advocates for Democrats to take a more aggressive approach to the judicial confirmation process. “It’s because Republicans use their blue slips to create these openings. And then they ran over Democrats 17 times to fill them.”
“If blue slips were consistent at all, Trump’s record on circuit courts would be dramatically different and his impact on the law would be very different,” Kang added.
Biden’s first-year effort was largely targeted at vacancies in states where both senators were Democrats. While there was occasional tension over certain nominees, Democrats were largely on board with the President’s vision for the judiciary.
Biden has plenty of blue state vacancies left to fill, but his effort is also turning to states where one or both senators are Republicans.
A nominee for a Tennessee seat on the 6th US Circuit Court of Appeals that was before the Senate Judiciary Committee on Wednesday marked the first time that Democrats moved forward with an appellate nominee who lacked the support of the state’s senators.
Republican Sens. Marsha Blackburn and Bill Hagerty of Tennessee – where the nominee, Andre Mathis, is from – announced their opposition when Mathis’ nomination was unveiled by the White House in November. On Wednesday, Blackburn reiterated claims that the White House had not engaged meaningfully with Hagerty and her before choosing Mathis over the judge they had recommended for the position.
“Because I was not consulted, no one has asked me what my objections to Mr. Mathis might be,” Blackburn said, pointing to what she described as a lack of legal experience as well as three decade-old traffic citations that Mathis had failed to pay.
“It has been made public that he has a rap sheet with a laundry list of citations, including multiple failures to appear in court in Tennessee,” Blackburn said during the hearing. “We expect our judges to respect the law, not disregard it. If Mr. Mathis thought he was above the law before, imagine how he’ll conduct himself if he’s confirmed.”
Judiciary Chairman Dick Durbin, an Illinois Democrat, noted the GOP objection and said he had been unhappy when Republicans chose to forgo blue slips for circuit court nominees under Trump.
“But my concerns and concerns of my Democratic colleagues were ignored. Republicans chose to abandon the senatorial courtesy,” Durbin said. “My colleagues across the aisle, I think, would be hard-pressed now to demand that Senate Democrats reinstate this practice.”
A Republican on the committee acknowledged Democrats’ perspective that the stage for Wednesday’s disagreement over Mathis had been set by how judicial nominations worked under Trump.
“I see [Democrats’] point: ‘We did it the other way under Republican administration. To change right now would be perceived as unfair to this administration,’” Louisiana Sen. John Kennedy said. He said that Blackburn’s opinion wasn’t valued by the White House, but “I can’t honestly say that didn’t happen under the last administration.” Still, he called on the committee to “find a neutral way” for home state senators to have more of a say in appeal court nominations going forward.
A turn away from Senate norms
The blue-slip practice had been weaponized in recent years.
President Barack Obama was unable to fill six appellate seats due to the objections of home state Republican senators to his nominees. Nominees for several other vacancies were never even named by Obama amid the stalled negotiations, and Trump was then able to fill several of those openings in his record-breaking confirmation push.
In November 2017, Grassley announced he would move forward with Trump appellate court nominees in states where one or both of the senators did not return the blue slips of paper that signify their approval.
Grassley said Wednesday that even though he had eliminated the blue slip requirement for circuit court nominees, he still monitored the amount of consultation the Trump White House was doing with senators in the nomination process. The Trump administration, Grassley insisted, “generally solicited candidates from senators” and engaged in other types of back-and forth, though some committee Democrats said that was not their experience with the Trump White House.
Republicans decried what they say was a lack of effort by the White House to reach an agreement with Tennessee Republican senators before rejecting their recommendation for the 6th Circuit seat. Sen. Ted Cruz of Texas claimed the Biden White House had “barreled” over the input of the Tennessee senators and that was “fundamentally different” from the approach under Trump.
There was an extended discussion over the granular details of the White House’s communications with the senators about the vacancies: when did the communications occur, what was said and whether that outreach was really any less than the Trump White House had done with many Senate Democrats.
“If we still had the blue slip, we wouldn’t have to have an argument about whether the consultation was sincere or real or meaningful or not,” Sen. Sheldon Whitehouse said, as the Rhode Island Democrat recounted the warnings he had expressed under Trump about Republicans abandoning the practice.
“No blue slip, no recourse,” Whitehouse said Wednesday.
Biden’s judicial nomination push reaches red and purple states
The fight over consultation comes as Biden enters the next phase of the judicial nomination battle.
He has achieved historic success in his efforts to fill the bench, tying President Ronald Reagan for the most judges confirmed in the first year of a presidential term.
Besides the quantity of judges confirmed, his White House has focused on bringing more professional diversity to the judiciary. Biden has broken records with the number of former public defenders he has put on the bench.
At the district court level, where the approval of home state senators is still required, the White House has named four nominees – three from Ohio and one from Wisconsin – who have the support of the Republican senators in those states. The Senate Judiciary Committee will vote on Thursday whether to advance the Ohio nominees, who were initially recommended to the White House after Democratic Sen. Sherrod Brown and Republican Sen. Rob Portman used a bipartisan advisory commission to identify potential nominees. The support those nominees get from the broader Republican conference will be a preview, progressive court advocates will say, of whether the blue slip process for district court nominees will be a point of contention under Biden.
“It will be telling if the rest of the Republican caucus is so obstructionist and so oppositional to anything Joe Biden does that they are willing to oppose nominees that a senior conservative Republican, Rob Portman, supports,” said Daniel Goldberg, the legal director of the left-leaning legal advocacy group Alliance for Justice.
On Wednesday, the Judiciary Committee eventually struck a more conciliatory tone, even amid the sharp words over the Mathis nomination. Committee members of both parties suggested they would consider charting a new path in the future – perhaps after the 2024 election – that would bolster the role that home state senators have in informing circuit court nominees.
But Kang, of Demand Justice, argued there won’t be enough circuit court vacancies in Biden’s first term for Democrats to match what the hardball tactics had achieved for Trump.
“It can’t be that Republicans cram so many confirmations in because they’re the first ones to take advantage of this,” Kang said. “And then Democrats only get four years and maybe a half a dozen circuit court seats.”
This story has been updated with additional details.