Senate Republicans Look To Pack Federal Judiciary

Having denied Merrick Garland his seat on the Supreme Court by refusing to carry out their constitutional duties and installing Neil Gorsuch in Garland's place by destroying another governing norm by eliminating the filibuster for Supreme Court nominees, Senate Republicans and Donald Trump are now intent on remaking the federal judiciary in the image of the extremist and radical Federalist Society. There at over 120 vacancies on the federal bench, largely because of foot-dragging by Republicans during Obama's presidency and the GOP is determined to fill them.

Trump has just decimated numerous more governing norms norm with his nomination of ten judges for the federal bench on the very day he fired James Comey. He did so without going through the normal American Bar Association vetting or consulting with the Senators whose home states the judge will cover, breaking a Senate tradition in place for a century. In many of those states, Senators have set up state judicial committees that vet and recommend a slate of candidates for nomination. This process attempts to ensure that whoever moves on to the federal bench will be well-known and well-respected in the districts that they will cover. By doing so, it also helps ensure the federal judiciary will be independent and have some degree of bipartisan support.

The norm of consultation with home state Senators actually rests upon another governing norm in the Senate, something called the blue slip process. This norm required a Senator to sign a blue slip giving their approval to any federal judge covering their state. Republicans, of course, abused this process under President Obama. Marco Rubio, for example, recommended a nominee whom Obama then nominated to the federal bench. Whereupon Rubio delayed providing his blue slip approval for months while he "reviewed" her qualifications. But the most egregious example comes from Republican Senator Thom Tillis who managed to keep a spot on the US District Court for the Eastern District of North Carolina open for over a decade by refusing to provide his blue slip.

In bypassing consultation with Senators, Trump has raised the fear among Democrats that Republicans will destroy another Senate norm and eliminate the blue slip process. That decision is technically the responsibility of the Judiciary Chairman who is Chuck Grassley, but it is hard to imagine him making that decision without the approval of McConnell and the Republican caucus. Because Democrats eliminated the filibuster for federal judges other than the Supreme Court (which McConnell just eliminated) in order to finally be able to move on Obama's nominees, they have no way to stop these Republican appointees other than through the blue slip process. The only tool Democrats would have left would be to force a full debate on each and every nominee and use up valuable Senate floor time, thereby slowing down other parts of the GOP agenda.

There is already pressure from some Republican Senators to eliminate the blue slip. Tom Cotton has said, "We can’t allow Democratic senators to continue obstructing this president’s agenda,. If they are just arbitrarily not returning blue slips, we have to consider changing that tradition." Grassley, however, seems inclined to pretend to keep the system in place while reserving the right to do away with it whenever he wants, saying, "The blue slip is still the policy, but remember, there’s always been exceptions."

One of the exceptions in the past has been that the nominee could move forward as long as one of the two Senators from a state provides a blue slip. But one of Trump's nominations covered Minnesota, represented by two Democratic Senators, Al Franken and Amy Klobuchar. The fact they were not consulted in the selection certainly leaves the impression that the GOP is inclined to eliminate the blue slip process. To do so would just be a continuation of the destruction of the democratic and governing norms of this country that the Republicans have been waging for two decades and that Donald Trump has moved into hyperdrive.