March 12, 2018

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.