May 10, 2018

Judiciary Committee Democrats: Republicans Remaking Federal Judiciary

            WashingtonWith Senate Republicans attempting to confirm six circuit court nominees in two weeks, all 10 Judiciary Committee Democrats today released a report detailing the president’s efforts to remake the federal judiciary, particularly the circuit courts.

            The report is signed by Senators Dianne Feinstein (D-Calif.), Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Sheldon Whitehouse (D-R.I.), Amy Klobuchar (D-Minn.), Chris Coons (D-Del.), Richard Blumenthal (D-Conn.), Mazie K. Hirono (D-Hawaii), Cory A. Booker (D-N.J.) and Kamala D. Harris (D-Calif.).

            The senators issued the following statement after releasing the report:

            “The Senate is poised to confirm a total of six circuit court nominees in a matter of days, bringing President Trump’s number of circuit court nominees confirmed to 21. President Trump and Senate Republicans are filling vacancies, particularly circuit court vacancies, at record-breaking speed.

            “To fill these vacancies as quickly as possible, Republicans have changed how judicial nominees are considered and weakened the Senate’s vetting process, even diminishing the role of home-state senators by undermining the 100-year old blue-slip tradition.

            “Many of these circuit court nominees are outside the mainstream, in their 40s or have little or no relevant experience. This is a clear strategy to reshape our courts for decades.

            “Circuit and district courts are final justice for most Americans with cases in federal court. These courts decide more than 400,000 cases per year. They significantly affect American life—our families, communities and businesses. This effort to change the courts could affect access to health care, civil rights, environmental protections, women’s rights, workplace safety and LGBT rights for generations by rolling back hard-fought progress.

            “Judges serve for life and it’s critically important our courts remain committed to equal justice where all Americans receive a fair and impartial hearing.”

Key points

1.      Senate Republicans’ obstruction of President Obama’s judicial nominees provided President Trump an opportunity to dramatically remake federal courts: Sustained efforts by Senate Republicans to block President Obama’s judicial nominees were intended to hold seats open for a Republican president. This obstruction allowed Senate Republicans to hand President Trump 112 vacancies on day one of his term, including the Supreme Court seat they held open for nearly a year, as well as 17 circuit court and 86 district court vacancies. These vacancies represented 12 percent of the federal judiciary. In contrast, President Obama entered office with just 53 vacancies, or 6 percent of the federal judiciary.
2.      To confirm President Trump’s often ideological and even unqualified nominees as quickly as possible, Senate Republicans have undermined the Senate’s advice and consent role: To further the long-standing goal of remaking the federal judiciary, Republican leadership has eroded the Senate’s ability to vet judicial nominees and ensure they are qualified and within the mainstream. One of the ways this has been done is diminishing senators’ ability to use the blue-slip tradition to guard against extreme nominees.
3.      Having demanded that their blue slips be honored and used the blue slip to block 18 Obama nominees, Senate Republicans eliminated the guarantee that blue slips would be honored for Democrats: When Senate Republicans were in the majority (2015-2016), they blocked nine Obama nominees from receiving hearings because they did not have both blue slips from home-state senators. With a Republican president, Senate Republicans have reversed their position and allowed three nominees to move forward without both blue slips.
4.      Senate Republicans have pushed two circuit court nominees on hearings, making it more difficult to vet and question them: In 2017, the committee held four hearings with two circuit court nominees on the same panel—more than all eight years of the Obama administration—and each time over the objection of Democratic senators.
5.      President Trump and Senate Republicans have undermined the independent, nonpartisan role of the American Bar Association (ABA) in ensuring judicial nominees are qualified: The Trump administration eliminated the ABA’s role in evaluating judicial nominees prior to their nominations.
More than one year into the Trump administration, five nominees have received hearings without ABA evaluations. Two others were rated unanimously “not qualified.” Of those, one dropped out and the other became the first nominee ever rated “not qualified” based on concerns of bias to be confirmed.
6.      President Trump and Senate Republicans are reshaping the nation’s circuit courts at breakneck speed: President Trump’s first 15 circuit court nominees took an average of 131 days to be confirmed. In contrast, President Obama’s first 15 circuit court nominees took an average of 254 days to be confirmed—more than twice as long.
On average, President Trump’s first 15 circuit court nominees waited just 20 days from approval by the Judiciary Committee to confirmation on the floor. On average, President Obama’s first 15 circuit court nominees waited 167 days from approval by the Judiciary Committee to confirmation on the floor—eight times longer than President Trump’s nominees.

 

7.      President Trump’s circuit court nominees have been far more controversial than President Obama’s circuit court nominees: President Trump’s first 15 circuit court nominees were confirmed largely along party lines, reflecting nominees’ ideological records and lack of consultation with Democratic senators on nominees from their states to ensure mainstream choices. 

Eleven of President Trump’s first 15 circuit court nominees have been confirmed with fewer than 60 votes. President Obama’s first 15 circuit court nominees were confirmed with overwhelming bipartisan votes. Three were confirmed unanimously (by voice vote) and seven did not receive a single vote in opposition.

 

8.      President Trump’s circuit court nominees have been young, with more than half in their 40s, allowing them to serve for more than a generation: Nine of President Trump’s first 15 confirmed circuit court judges, or 60 percent, are in their 40s. By comparison, only one of President Obama’s first 15 confirmed nominees was in their 40s.
9.      Outside and dark-money political groups, including the Federalist Society, the Judicial Crisis Network, and the Heritage Foundation, have been central to the effort to fill vacancies as quickly as possible. They have used their power and resources to influence the selection of nominees and pressure Republicans to rush nominations through the Senate.
 
10.  President Trump’s nominees reflect a lack of diversity, with far fewer women and people of color than President Obama’s nominees:
  •  8 percent of President Trump’s U.S attorney nominees are women.
  • 25 percent of President Trump’s district court nominees are women.
  • 19 percent of President Trump’s circuit court nominees are women.
  • 8 percent of President Trump’s U.S. attorney nominees are people of color.
  • 8 percent of President Trump’s district court nominees are people of color.
  • 11 percent of President Trump’s circuit court nominees are people of color.
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