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The Judicial Confirmation Process Is Being Distorted

Sen. Dianne Feinstein

Dianne Feinstein

Sen. Dianne Feinstein, D-Calif., is ranking member of the Senate Judiciary Committee.

After eight years of Republican obstruction of President Obama’s judicial nominees, culminating in the unprecedented decision to deny President Obama his opportunity to fill a U.S. Supreme Court vacancy for a year, President Donald Trump entered office with 112 vacancies, compared to just 53 vacancies when President Obama entered office.

During President Trump’s first year in office, the White House coordinated with Senate Republicans to rush through large numbers of extremely conservative nominees to fill these vacancies, thereby changing the nature of the federal judiciary for decades.

Under Republican leadership, the Judiciary Committee has become a rubber stamp for Trump’s nominees. Many of these individuals are young, possess little or no judicial or legal experience and have views far outside the mainstream. This includes nominees rated unanimously “not qualified” by the American Bar Association.

Week after week, senators question nominees to better understand their records, but all too often their inquiries are rebuffed. Nominees pledge to “follow precedent,” but refuse to offer any insight into their judicial philosophies. What’s worse, we have repeatedly witnessed conservative nominees make this pledge, only to overturn long-standing precedent once they’re confirmed.

The strategy of pushing right-wing nominees onto the courts with minimal review resulted in 12 of President Trump’s circuit court nominees being confirmed just 328 days after President Trump took office. This is the most circuit court nominees ever confirmed in a president’s first year.

This record is even more significant when you consider that President Trump confirmed one more circuit court judge than Presidents Kennedy and Nixon, both of whom operated during a time when administrations cooperated with home-state senators of both parties and sought consensus candidates.

Despite their controversial records, these circuit court nominees were confirmed in an average of just 13 days after being advanced out of committee. This is nearly 13 times faster than President Obama’s first 12 circuit court nominees — even though the vast majority of President Obama’s first 12 circuit court nominees enjoyed broad, bipartisan support.

In President Trump’s first year in office, five judicial nominees were also withdrawn due to their lack of qualifications and failure to disclose information to the Senate. A number of these nominees also had a history of charged commentary, casting doubt on their ability to be perceived as impartial on the bench.

Weakened Vetting

In order to move nominees at this breakneck speed, Republicans have undermined the vetting process and long-standing Senate traditions.

Advancing nominees without blue slips from home-state senators, scheduling hearings before nominees are evaluated by the American Bar Association, stacking multiple circuit court nominees into one hearing, refusing to follow up on nominees’ failures to disclose relevant information, rushing nominees to the floor — these actions are all being taken to minimize scrutiny.

Taken together with statements from Senate Majority Leader Mitch McConnell, R-Ky., that remaking the courts “is the most long-lasting impact we could have,” it’s clear that Republican leadership wants to remake our courts by jamming through President Trump’s controversial and frequently unqualified nominees.

While Democratic senators have sounded the alarm on this effort to undermine the judicial nominations process, Republican senators should consider that they too could be steamrolled.

Since 1917, home-state senators have signed off on judicial nominees from their states by returning a blue piece of paper or “blue slip.” This practice ensures senators are consulted on lifetime appointments and that nominees are mainstream and well-suited to serve in their states.

In January 2015, Chairman Chuck Grassley took over the Senate Judiciary Committee and pledged in a Des Moines Register op-ed to honor senators’ decisions on blue slips. He acknowledged Chairman Patrick Leahy’s commitment to the tradition and wrote that he “appreciate[d] the value of the blue-slip process and also intend to honor it.”

He did honor it — under a Democratic president. In fact, he did not hold hearings for nine of President Obama’s judicial nominees — including four circuit court judges in 2016 alone — because the home-state senator did not return a blue slip.

However, less than one year into the Trump administration, Chairman Grassley has advanced two nominees without both blue slips from home-state Democratic senators. Chairman Grassley is my friend and we work together on a number of issues, but I do not believe there should be one policy for Republican presidents and a different policy for Democratic presidents.

At first glance, it may seem as if this change will only affect Democrats. But we have already heard about efforts by the Trump administration to try to roll Republicans on nominees. For example, Kyle Duncan, nominated to the Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit was not from the state, did not come through the state’s senators, and appeared to have strong opposition from within the state.

While Duncan’s questionnaire cited Sen. John Kennedy, R-La., as having recommended him to the White House, at the hearing, Senator Kennedy said that was “not accurate.” White House counsel Don McGahn told him that Kyle Duncan would be the Fifth Circuit nominee and that was that.

Senator Kennedy noted that while McGahn apologized for his tone in one of their conversations, "he did not relent" on his "firmness" that Duncan would be the nominee.

The only way for Republican senators to ensure that they don’t find themselves on the receiving end of angry phone calls from both the White House counsel and lawyers in their home states is to ensure the prerogative of senators is protected.

American Bar Association's Role

Since President Eisenhower’s administration, the American Bar Association has played an independent, nonpartisan role in evaluating the professional qualifications of the lawyers and judges nominated to lifetime federal judgeships.

The Trump administration has eliminated the ABA’s role in evaluating judicial nominees prior to their nominations. One year into the Trump administration, five nominees have received hearings without ABA evaluations. Eleven more were scheduled for hearings prior to the ABA completing its evaluations.

The decisions to prevent the ABA from evaluating nominees in advance and hold hearings before evaluations are complete indicates a desire to minimize scrutiny on nominees’ records and qualifications.

Since 1989, the ABA has evaluated more than 1,700 judicial nominees — only 16 have been rated “not qualified,” and only four have been rated unanimously “not qualified.” Yet, in just one year of the Trump administration, four nominees have been rated “not qualified,” including two rated unanimously “not qualified.”

Specifically, two nominees since 1989 have been rated unanimously “not qualified” based on their judicial temperament and concerns over impartiality — Michael Wallace in 2006, a Bush nominee who was never confirmed, and Trump nominee Steven Grasz, who was confirmed last year 50-48 on a party-line vote to the Eighth Circuit.

Instead of examining allegations by Grasz’s own colleagues who had deep concerns about his ability to be fair and impartial, Senate Republicans attacked the ABA. These attacks of “bias” came despite the fact that at that point in time, the ABA had rated 54 of 58 of President Trump’s judicial nominees as “qualified” or “well-qualified.”

Uncooperative Nominees

Failure to ensure nominees are forthright with the committee and disclose the information and materials relevant to their nominations has also hampered the ability of all senators to evaluate nominees.

Before his nomination was withdrawn, district court nominee Brett Talley missed the committee’s deadline to provide detailed follow up on his failure to disclose potential conflicts of interest and 15,000 online posts, which included a defense of the KKK and a “joke” about statutory rape.

In another example, James Ho, nominee to the Fifth Circuit in Texas, had written a memo while he was a lawyer in the Office of Legal Counsel that was relied upon by then-OLC head Jay Bybee in one of the widely discredited memos that approved torture. A copy of Ho’s memo was requested but was not provided before Ho was confirmed.

No senator — of either party — should accept these omissions from a nominee up for a lifetime appointment.

Rushed Hearings

Another problem is rushing nominees through the committee by holding hearings with two circuit court nominees on a panel. In 25 years on the Judiciary Committee I have never seen nominees pushed through so quickly.

The Senate Judiciary Committee typically holds hearings on one circuit court nominee at a time because senators have five to seven minutes to ask questions of each panel of witnesses.

During the eight years of the Obama administration, there were only three instances of two circuit court nominees on the same hearing. Each instance occurred at the request of Republican senators, who were in the minority.

During the 13 months of the Trump administration, the committee has held four hearings with two circuit court nominees on the same hearing. Five circuit court nominees had hearings in November 2017 alone. Ironically, this is as many circuit court nominees as the Republicans held hearings for during the final two years of the Obama administration.

Moving at this breakneck speed severely limits senators’ ability to analyze their records, increasing the likelihood that senators could be caught by surprise later.

Federal judges aren’t subject to elections or term limits. These are lifetime appointments we’re talking about.

If we’re serious about fulfilling the Senate’s obligation to "advise and consent," Republican senators need to stand up to their president and leadership’s effort to distort the nominations process and protect their own power.
 

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.