Senate Republicans are set to confirm three more of President Donald Trump’s appeals court picks this week, a push that will help set a record for the most such appointments in a president’s first year in office.
The Senate is expected to confirm Steve Grasz for the U.S. Court of Appeals for the 8th Circuit, and James Ho and Don Willett for the U.S. Court of Appeals for the 5th Circuit, over the objections of Democrats who question whether they can be unbiased.
That would mean at least a dozen Trump appointees would join the nation’s appeals courts — which have the last word in all but the 100 or so cases that the Supreme Court decides each year — in his first year in the White House. That comes in a year the Senate also confirmed Supreme Court Justice Neil Gorsuch in April.
Compare that to Barack Obama, who successfully appointed three appeals court judges in his first year in office in 2009, as well as Justice Sonia Sotomayor. Obama followed up with 13 appeals court appointments in his second year in 2010. Richard Nixon and John F. Kennedy successfully appointed 11 appeals court judges in their first year in the White House.
“Each of these nominees will make strong additions to the federal bench and I look forward to considering them in the coming days,” Senate Majority Leader Mitch McConnell said on the Senate floor Monday.
There are currently 17 vacancies on the nation’s 13 appeals courts, with seven nominees pending, according to the Administrative Office of the U.S. Courts.
The pace over the last two months has been deliberate and fast compared to the recent past. This week is the second that McConnell, amid pressure from outside conservative groups, dedicated an entire week of floor time to a series of votes to overcome Democratic filibusters on the nominees.
Both times, the Kentucky Republican set up the floor action within a day of the Judiciary Committee approving the judges, leaping them ahead of district court judges already awaiting Senate floor action. The Senate confirmed four appeals court picks the week starting Oct. 31, and Democrats cannot stop the confirmation of this week’s nominees without votes from Republicans.
Adding to the speed, Senate Judiciary Chairman Charles E. Grassley has been loading up confirmation hearings before his panel with appeals court judges.
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Picking up the pace
Sen. Dianne Feinstein of California, the top Democrat on the committee, and other panel Democrats say there are real consequences if the pace of confirmation outstrips the committee’s ability to properly vet nominees who are appointed to a lifetime position.
“I’m concerned our role is becoming diminished,” Feinstein said Nov. 30. “Our committee has never been a rubber stamp for any president’s nominee, and I don’t think we should start now.”
Feinstein said the five hearings in November for appeals court nominees is a “clear telltale” sign that this is a “marked contrast to the traditional rate of confirmations.”
There have been four confirmation hearings since May that included two appeals court nominees, and only three such hearings took place in the eight years of the Obama administration. She has called it “the fastest confirmation pace I can remember in my 25 years of serving on this committee.”
“The majority can push something through, but the minority, in order to have a fair and complete assessment, must really apply itself to study carefully the materials it has before it,” Feinstein said.
Grassley defended his committee’s pace on judicial nominees. Committee spokesman Taylor Foy said the Iowa Republican allows senators to ask as many questions as they want of the nominees, and members often ask follow-up questions in writing as well.
“Finally, any suggestion that I dragged my feet in scheduling hearings during the final two years of the Obama administration is untrue. I held hearings for 54 judicial nominees, not far off from Senator Leahy’s hearings for 57 nominees in the final two years of the Bush administration,” Grassley said, comparing his record with that of Sen. Patrick J. Leahy, when the Vermont Democrat was Judiciary chairman.
Democrats also have specific concerns about the nominees’ ability to appear impartial on the bench. Rhode Island Sen. Sheldon Whitehouse put it bluntly ahead of the Dec. 7 committee vote: “I’m sorry to predict that Grasz, and Willett, and [district court nominee Mark] Norris and Ho will join a stream of a number of the Trump nominees who will turn out to be terrible judges.”
Grasz, an Omaha lawyer and lobbyist, is the first appeals court nominee since 2006 to get a rare unanimous “not qualified” rating from the American Bar Association.
He once defended Nebraska’s “partial birth abortion” ban at the Supreme Court as the state’s deputy attorney general and previously served on the board of the Nebraska Family Alliance, a faith-based organization that has staked out controversial positions on LGBT rights.
He cleared a procedural hurdle Monday when the Senate voted 48-47 to invoke cloture and shut off debate. A final vote on confirmation is expected Tuesday.
Willett, a Texas Supreme Court justice known for his wit on Twitter, has drawn opposition from Democrats and civil rights groups, who say his record indicates he would be against workers’ rights, environmental laws, abortion rights and LGBT rights.
Ho is a Dallas appellate lawyer who formerly served as solicitor general of Texas and chief counsel to Texas Republican Sen. John Cornyn, a Judiciary member. Ho would be the first Asian-American judge on the 5th Circuit, which covers Louisiana, Mississippi and Texas.
All three advanced from the Judiciary Committee on 11-9 party-line votes.