Sen. Lindsey Graham has said the Judiciary Committee won’t send any more of President Donald Trump’s judicial nominees to the Senate floor before the 116th Congress ends, likely on Jan. 3. Still, he held a hearing Wednesday on one more, in a bid to tee him up for the incoming administration of President-elect Joe Biden.
The panel heard testimony from Raúl M. Arias-Marxuach, who is nominated to be judge for the U.S. Court of Appeals 1st Circuit. He was confirmed, 95-3, in May 2019 to be U.S. district judge for the District of Puerto Rico and was tapped to take a seat on the 1st Circuit after the October death of Judge Juan R. Torruella.
Graham told CQ Roll Call before the hearing he would get testimony from Arias-Marxuach and then wait to see if Majority Leader Mitch McConnell can advocate for Biden to re-nominate him next year. In a nod to senatorial courtesy, it is not uncommon for the nominees of one president to be re-nominated by another, even if they are of opposing parties. Several of Trump’s picks had been previously nominated by President Barack Obama but never confirmed by the GOP Senate.
“We’ll have a hearing and Mitch is gonna go talk to Biden, assuming Biden wins, which it looks like he will, about what they can do,” he said, reiterating that he would not report Arias-Marxuach out of committee.
Graham referenced a similar situation in the transition from the Clinton administration to the administration of George W. Bush.
Then-President Bill Clinton, who faced a GOP-controlled Senate, installed Roger Gregory to the 4th Circuit via recess appointment in December 2000. Gregory became the circuit's first African American appellate judge and filled a seat that had been vacant for a decade. The appointment would have only lasted until the congressional session’s end in 2001, but Gregory was renominated by Bush in May of 2001.
At the hearing Wednesday, Graham said “having a hearing here will make the case that this would be an outstanding nominee by any president.”
It's not clear whether Biden would renominate him. The White House declined to comment on whether Trump would name Arias-Marxuach to the 1st Circuit via a recess appointment, if the opportunity arises.
McConnell has said the Senate would continue to consider nominees on the Executive Calendar as Congress negotiates its end-of-year spending and COVID-19 relief measures.
Florida Republican Sen. Rick Scott, who submitted a statement introducing and supporting Arias-Marxuach, called the nominee “outstanding” and said the judge had his full support.
Sarah Schwirian, Scott’s press secretary, said in a statement shared with CQ Roll Call that the senator is committed to “supporting the confirmation of judges who respect the limited role of the judiciary in our federal three-branch system of government, and who will follow and apply the law as-written, not legislate from the bench.”
Neither McConnell or Scott responded to questions of whether they had discussed whether to seek renomination during the Biden administration, or seek a recess appointment for Arias-Marxuach from Trump.
Graham and McConnell’s push during a lame-duck session to confirm judges nominated to lifetime appointments by a president whose party has lost the White House hasn’t occurred, with one exception, in more than a century.
At the hearing, Sen. Richard J. Durbin, D-Ill., questioned Graham on his vow to not process him, asking him about potential confirmation between Jan. 3 when the new Congress is sworn in, and Jan. 20, when Biden is inaugurated.
“I don’t believe there would be 50 votes to process somebody in that period of time,” Graham said.
Sen. Ted Cruz, R-Texas, asked Arias-Marxuach during the hearing whether it was ever appropriate for a federal judge to be a “judicial activist,” to which the nominee said he didn’t think it is.
“The role of the judiciary is to say what the law is, not what the law should be,” Arias-Marxuach said. “The role of determining what the law should be is the role of the congress and the president through the legislative process.”
During Wednesday’s meeting, outgoing ranking member Dianne Feinstein, D-Calif., questioned Arias-Marxuach about his lack of criminal law experience. She also said the committee’s hearing was an attempt to “stack the federal courts” with nominees put forth by a president whose party lost the election.
“Despite the fact that President Trump has lost his re-election bid,” she said, “we are still processing his judicial nominees instead of addressing the most pressing issues before us.”