While White House officials are subsumed by the fresh intensity of the special counsel investigation, and House Republicans are preoccupied with propping up the tax overhaul, their GOP colleagues in the Senate are focusing on something not nearly as provocative as either of those things — but perhaps almost as consequential over the long haul.
This week, they’re pushing to double, from four to eight, the number of reliable conservatives that President Donald Trump has installed on the federal appeals courts during the opening year of his administration.
It’s a clear reminder that, thanks to the evisceration of the filibuster rules executed by the Democrats four years ago, Trump has almost unfettered power to push the federal bench rightward so long as the Senate remains in GOP hands.
Even if indictments swirl around him and his legislative program totally runs aground, at least through the midterm election, Trump can keep fulfilling the campaign promise so important to securing his base among social conservatives.
The principal wonder, then, is why nominations and confirmations are not happening even more rapidly.
The consequences of such speed for civil rights, law enforcement, labor relations, environmental protection, the constitutional balance of powers and every other aspect of federal law would surely last for many years beyond the end of his tenure.
That’s mainly because the judges on the 13 circuit courts of appeal have the final word on the overwhelming majority of the many thousands of cases that come to them from the federal district, or trial, courts. No more than 100 of their decisions each year get reviewed by the Supreme Court.
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In addition, these jurists generally get their lifetime appointment to the appeals courts in their late 40s or early 50s and remain on full-time duty for two decades or longer, at which point many continue to hear cases in semiretirement.
The average age of the four Trump appeals court judges confirmed so far is 51. The figure is 48 for the quartet that Majority Leader Mitch McConnell is in the process of muscling through the Senate.
By far the most publicly controversial of them has been professor Amy Coney Barrett of Notre Dame Law School, although senators voted 55-43 Tuesday to seat her on the U.S. Court of Appeals for the 7th Circuit, headquartered in Chicago.
During her Senate Judiciary hearing, senior Democrats Dianne Feinstein of California and Richard J. Durbin of Illinois made the unusual argument that Barrett’s Roman Catholic orthodoxy might preclude her from exercising her commitment to judicial neutrality. Republicans derided that line of inquiry as betraying bias.
Someone “who speaks freely and openly about her faith and its importance to her,” McConnell chided the Democrats in the National Review last week, should not be punished by those who “seem to have forgotten we do not have religious tests for office in this country.”
The others on course for confirmation this week were all opposed by the Democrats on Judiciary and some abortion rights, gay rights and labor advocacy groups — but not quite as passionately.
The vote was 60-38 Wednesday to put Joan Larsen on the 6th Circuit, based in Cincinnati. A justice on the Michigan Supreme Court the past two years, she was among 21 people Trump listed as his potential Supreme Court nominees during the 2016 campaign.
Confirmation is on course Thursday for Allison H. Eid, a justice on the Colorado Supreme Court who’s been tapped for the seat on the 10th Circuit, based in Denver, that Neil Gorsuch vacated to join the Supreme Court.
After that, the Senate will consider professor Stephanos Bibas of the University of Pennsylvania Law School for the Philadelphia-based 3rd Circuit.
Four appeals court confirmations in almost as many days might create the impression of a crumbling stalemate in the judicial wars.
But that’s not really the case, mainly because in the current phase of this post-“nuclear option” world — the term for the Senate’s decision to obliterate the filibuster option on nominees — the Democrats are powerless to fight such a war.
They can slow-walk the process for a few days at a time, mainly by forcing a symbolic vote to cut off their toothless filibuster and then by insisting on the mandatory 30 hours of available debate time. (McConnell is mulling his options for shortening that waiting period.) Either way, on their own, the Democrats cannot stop the minting of any new Trump judge on the Senate floor.
And yet Trump has not shown much eagerness to leverage the exceptional power he’s got. There are another score of vacancies on the circuit courts, but Trump has named the people he’d like to have filling just half of them. Six of the remaining seats, those without nominees, have been vacant since Inauguration Day — a somewhat surprising number, even given the extensive process at the Justice Department for vetting the legal and political backgrounds of potential candidates and getting stamps of approval from home-state senators and conservative advocacy groups, the Federalist Society and Heritage Foundation pre-eminent among them.
A brewing fight
To be sure, eight successful appointments would mean Trump has already filled about 5 percent of all the available seats on the appeals courts — a bigger bite than what any of his three most recent predecessors accomplished during their first nine months in office. And getting Gorsuch confirmed to the high court still stands as his biggest victory at the Capitol to date.
But from here on out, the process shows strong signs of slowing down — and threatening a fight over the most potent remaining power of senators to derail a nominee for a judgeship.
For the past century, strong deference and sometimes virtual veto power has been granted to senators who disapprove of would-be judges from their home states. Announcing their withholding of support, using a document known as a “blue slip,” currently means a nominee does not get so much as a Judiciary Committee hearing.
But Chairman Charles E. Grassley says he may trim back the broad interpretation of that courtesy, or do away with it entirely — a move that would surely infuriate the Democrats and expand the Hill’s polarized partisanship into a new place.
Unless that happens, three Trump nominees from the summer will remain in limbo because of Democratic blue-slip objections: Tammy Baldwin of Wisconsin opposes Milwaukee appellate lawyer Michael B. Brennan for the 7th Circuit, Al Franken of Minnesota does not want Justice David Stras of the Minnesota Supreme Court to be on the 8th Circuit, and both Ron Wyden and Jeff Merkley of Oregon say federal prosecutor Ryan W. Bounds of Portland is wrong for the 9th Circuit.
On top of that, this week, the American Bar Association declared another 8th Circuit nominee, former Nebraska deputy attorney general Steve Grasz, “would be unable to separate his role as an advocate from that of a judge” and so was “not qualified” for the federal bench — only the third time since 1989 that it’s delivered such an opinion. But he enjoys support from both his state’s GOP senators and his hearing before Judiciary went ahead as scheduled Wednesday.
Most of the political and lobbying muscle in the judicial wars is devoted to the appeals court nominees because, once confirmed, their opinions are supposed to dictate the rulings from the U.S. district courts in their regions. But those courthouses still need people to apply those precedents while conducting criminal and civil trials.
And at the moment, 119 district bench seats, or 18 percent of them nationwide, are empty — and almost half of those vacancies are now labeled “judicial emergencies” by the court system because they started before the end of the Obama administration.
To date, Trump has won confirmation of just four of his district court judges, he’s made nominations for only a quarter of the openings, 35 of them, and Judiciary has forwarded only half of them to the Senate floor for a vote.