Dem Sens. Blocking Trial Court Picks Amid High Court Fight

Law360 (September 28, 2020, 8:30 PM EDT) -- As Democrats protest Republican plans to quickly replace U.S. Supreme Court Justice Ruth Bader Ginsburg before Election Day, several Democratic senators are blocking consideration of district court nominees for their states, including two in New Mexico and potentially six in New York.

New Mexico's senators, Martin Heinrich and Tom Udall, said last week that the Republican push for a quick Supreme Court confirmation justifies their decision to halt Senate consideration of two candidates they had previously recommended to the White House. Minority Leader Chuck Schumer of New York is blocking up to six nominations for his state, an aide told Law360 on Monday. But it was not immediately clear whether the moves came before or after Justice Ginsburg's death.

Democrats have been blasting Republicans for moving quickly to replace Justice Ginsburg after she died 46 days before Election Day in what would be the fastest high court confirmation since 1981. Some Democratic senators have vowed procedural delay tactics, voted against a Democrat-backed Virginia trial court pick and warned that "nothing is off the table" if they gain power in November's elections — perhaps even adding seats to the Supreme Court for the first time since 1869, as three House progressives are set to propose Tuesday.

All senators have the power to block Judiciary Committee consideration of trial court picks for their states under a century-old custom that requires home-state senators to signal their assent by submitting "blue slips."

New Mexico's senators told local newspapers last week that they pulled their blue slips over President Donald Trump's remarks when he unveiled an expanded Supreme Court short list on Sept. 9, nine days before Justice Ginsburg died.

"Just weeks before the passing of Supreme Court Justice Ruth Bader Ginsburg, the President insisted on politicizing the judicial appointment process in his remarks at a thinly veiled campaign event at the White House," Heinrich and Udall said in a joint statement Friday. "We will be pausing the process given the close proximity to the election and will continue to work expeditiously to fill these vacancies once the American people have spoken."

The senators' spokespeople did not identify exactly what Trump said that prompted the decision, but the president had claimed that if Democrats got to make high court appointments, "Radical justices will erase the Second Amendment, silence political speech and require taxpayers to fund extreme late-term abortion."

The New Mexican senators' decision halts Senate consideration of two candidates Trump nominated in May, after the senators recommended them.

Nominee and Venable LLP alum Fred J. Federici III, a federal prosecutor for a quarter century, is currently the first assistant U.S. attorney for the District of New Mexico. The other nominee is transportation and product liability litigator Brenda M. Saiz, who is a director at the Albuquerque firm Rodey Dickason Sloan Akin & Robb PA. The American Bar Association's judicial evaluation panel unanimously gave both its top rating of "well-qualified." Saiz declined to comment Monday, and Federici did not immediately respond to a request for comment.

The federal judiciary considers the New Mexico vacancies, which opened in July 2018 and July 2019, to be "judicial emergencies." The border state sees a slew of immigration and drug trafficking cases.

District of New Mexico Chief Judge William P. Johnson said in a statement Friday that he was "disappointed that these two exceptionally well‐qualified nominees will not receive Senate confirmation hearings before the Senate goes into recess," forcing the district to continue relying on senior judges and visiting judges sent from other states.

The chairman of the state Republican Party, former U.S. Rep. Steve Pearce, blasted the senators' justification as "thin gruel." He said Judiciary Committee Chairman Lindsey Graham, R-S.C., predicted the nominees could have appeared at a confirmation hearing this month and won bipartisan confirmation votes this year.

"It is absolutely the worst political act that a senator could do," Pearce told Law360 on Monday. "It is their state that is being affected."

Pearce predicted it would take another year to fill the vacancies if Trump wins re-election and perhaps another year or two beyond that if he loses, because a Biden administration would need time to get moving on trial court picks.

A Udall spokesman noted that the state's Democratic senators previously cooperated with the Trump administration on judicial nominees. U.S. Circuit Judge Joel M. Carson III, previously a litigator focused on energy and land use, won confirmation in May 2018 on a bipartisan 77-21 vote. U.S. District Judge Kea W. Riggs, a former state trial judge with experience as a prosecutor and in private practice, was approved on a unanimous 94-0 vote in December.

A Schumer aide confirmed Monday that the minority leader is withholding blue slips for nominees to New York trial courts but the aide did not say whether Schumer's move was a recent change or whether it applies to all six of his state's pending nominees.

The Southern District of New York has two candidates awaiting consideration, Gibson Dunn & Crutcher LLP partner Jennifer H. Rearden and career federal prosecutor Iris Lan. They would fill vacancies the federal judiciary considers emergencies based on the district's heavy caseload.

Boies Schiller Flexner LLP counsel Ryan T. McAllister is up for the Northern District of New York. The Eastern District of New York has three pending nominees — career federal prosecutor Saritha Komatireddy, Dechert LLP partner Hector Gonzalez and U.S. Department of Housing and Urban Development official David C. Woll. The six have been nominated over the past 10 months.

Along with New Mexico and New York, two other states with at least one Democratic senator have district court nominees awaiting Judiciary Committee confirmation hearings. The delays suggest senators may have withheld blue slips.

California has nine pending selections, some first nominated in 2018. Four trial court confirmations earlier this month gave the Golden State its first new federal judges since 2015. A spokesman for Sen. Dianne Feinstein said she does not discuss blue slips. Spokespeople for Sen. Kamala Harris have not responded to requests for comment.

Alabama has one pending nominee — the state's 35-year-old solicitor general, Kirkland & Ellis LLP alum Edmund G. LaCour Jr., was tapped in May. Sen. Doug Jones, the state's endangered Democratic senator on the ballot next month, has not responded to requests for comment.

Law360 is tracking Trump's judicial nominations from the White House to the Senate to the federal bench.

--Editing by Gemma Horowitz. 

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