Judging the 2020 Contenders: The Senators

Is it too soon to start a conversation about 2020?  Perhaps no other election, with the exception of 2016, is poised to have a greater effect on our federal bench.  The re-election of President Trump would allow him four more years of filling the bench with young conservatives, while the election of a Democratic president would stall that trend.  For many progressives, however, what they want is not a pause in the appointment of conservative judges but rather an active effort to move the federal bench in a liberal direction.  As such, let us look at the leading (and lagging) contenders for the Democratic Presidential nomination, and what their records on judges are.

We previously looked at governors.  Today, we turn to senators.

Senators may not have the nominating ability that Governors do, but they still have two important ways of displaying their judicial philosophies.  The first and most obvious is through their votes: senators show their judicial leanings by which nominees they support and oppose.  The second, and perhaps even more important, is through the judges they recommend to the White House.  Depending on the Administration, senators have been allowed to recommend district (and sometimes circuit) judges for nomination.  How senators have exercised this power relates directly to how they will exercise power as an executive.  Today, we will look at the current and former senators who may run for president, and their records on these two points.

Joe Biden

Perhaps no other senator (with the possible exception of the late Sen. Ted Kennedy) has had the level of influence over the federal bench that Biden has.  As the senator from Delaware for thirty six years, Biden shepherded eight district judges onto the District of Delaware, only one of which, Judge Gregory Sleet, was during a Democratic Administration.  Biden also supported the appointments of Delaware judges to the Third Circuit during the Reagan, H.W. Bush, Clinton, and W. Bush Administrations.  The home-state judges Biden supported, regardless of Administration, have generally been judicial moderates.  From Judge Walter Stapleton to Judge Thomas Ambro, they have avoided controversy and have established themselves as well-respected across the political spectrum.

On the flip side, Biden has exercised his blue slip privileges on occasion.  Late in the Bush Administration, Biden blocked the nomination of then-U.S. Attorney Colm Connolly to the district court.  As a result, Connolly was not confirmed despite support from Sen. Tom Carper, another Democrat.  (Carper nonetheless sponsored Connolly for a judgeship during the Trump Administration, and he was duly confirmed).

However, Biden’s real impact has been on the Senate Judiciary Committee.  Biden served as Chair of the Committee from 1987 to 1995, during which time he oversaw a whopping seven Supreme Court nominations.  Biden oversaw the failure of Judge Robert Bork’s nomination to the Supreme Court, as well as the confirmations of Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, all of whom he supported.  Biden was also Chair of the Committee during the confirmation hearings for Justice Clarence Thomas.  While Biden did not support Thomas, he nonetheless attracted strong criticism for failing to adequately investigate allegations of harassment and impropriety raised against Thomas and for buckling to political pressure from Republicans.  Biden also supported the nominations of Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, while opposing Chief Justices William Rehnquist and John Roberts, and Justice Samuel Alito, who were all confirmed.

Cory Booker

Cory Booker has served in the Senate since his election in 2013 to replace the late Sen. Frank Lautenberg.  As such, even as the junior senator from New Jersey, Booker has had a significant influence on judicial nominations for the state.  Booker was particularly active in pushing the nomination of Julien Neals, a member of his cabinet when Booker served as mayor of Newark.  Neals, nominated by Obama in 2015, was blocked from confirmation by Senate Majority Leader Mitch McConnell.  Booker has been actively pushing the nomination of Neals with the Trump Administration.

During the Trump Administration, Booker has been one of the most vocal opponents of the President’s judicial nominees, using his perch on the Senate Judiciary Committee to grill nominees on racial bias in the criminal justice system.  Booker strongly opposed both Justices Gorsuch and Kavanaugh, and has opposed 13 of Trump’s district court judges, and twenty five appellate judges.  In fact, Booker has supported just five Trump appellate nominees: Judge Jay Richardson for the Fourth Circuit; Judges Michael Scudder and Amy St. Eve for the Seventh Circuit; Judge Ralph Erickson for the Eighth Circuit; and Judge Mark Bennett for the Ninth Circuit.

Sherrod Brown

Brown has served as the U.S. Senator from Ohio since 2006, when he defeated Sen. Mike DeWine (now the Governor).  Since that day, Brown has overseen and supported seven nominations to the district courts in Ohio.  Early in his tenure, Brown supported President George W. Bush’s nomination of Judge Sara Lioi to serve on the U.S. District Court for the Northern District of Ohio.  During the Obama and Trump Administrations, Brown has established a bipartisan commission on judicial nominations with Senators John Voinovich and Rob Portman respectively.  The commission produced three confirmations during the Obama Administration: Judge Timothy Black to the Southern District of Ohio; and Judges Benita Pearson and Jeffrey Helmick to the Northern District.  All three judges have established left-of-center records on the bench.  During the Trump Administration, Brown has supported Trump nominees Pamela Barker, Sarah Morrison, and Matthew McFarland, who all emerged from the bipartisan commission, but opposed Sixth Circuit nominees Eric Murphy and Chad Readler, who did not.

Throughout his tenure, Brown supported almost all the judicial nominees that Presidents Bush and Obama put out, voting against just one, Judge Leslie Southwick for the U.S. Court of Appeals for the Fifth Circuit.  However, Brown has opposed 37 out of 59 Trump nominees brought up on a roll call vote, including both of Trump’s Supreme Court picks and 25 out of 30 appellate picks, supporting only Judges Richardson, Scudder, St. Eve, Erickson, and Bennett.

Hillary Clinton

Has there been a politician whose name is as ubiquitous as Hillary Clinton? Amid her resume of various political positions, it is easy to forget that Clinton served in the U.S. Senate, from 2000 to 2008, to be precise, when she represented New York.  During that period of time, Clinton generally deferred on nominations issues to Sen. Chuck Schumer, who negotiated judgeships with the Bush Administration.  Nevertheless, Clinton was not hesitant to vote against Bush nominees, voting against both Justices Roberts and Alito, for example.  Clinton also voted against Judges D. Brooks Smith, Dennis Shedd, Paul Cassell, Jay Bybee, Timothy Tymkovich, Jeffrey Sutton, Michael Chertoff, Deborah Cook, Victor Wolski, J. Leon Holmes, Diane Sykes, Priscilla Owen, Janice Rogers Brown, Thomas Griffith, William Pryor, Brett Kavanaugh, Jerome Holmes, and Leslie Southwick during her senate tenure.

Kirsten Gillibrand

New York Senator Kirsten Gillibrand had developed a relatively moderate record in the U.S. House before she was tapped to replace then-Senator Hillary Clinton in 2009.  Since that point, Gillibrand has developed a strongly liberal record on most issues, including judicial nominations.  Gillibrand has been a frequent opponent of Trump judicial nominees, for example, voting to reject all but four of his appellate picks (Scudder, St. Eve, Erickson, and Bennett) and, overall, rejecting 43 out of 59 nominees who received roll call votes (Interesingly, Gillibrand even opposed New York 2d Cir. nominee Richard Sullivan, who she nonetheless returned a blue slip on, and who fellow N.Y. Senator Chuck Schumer supported).

Relating to home-state nominees, Gillibrand has generally deferred to Senator Chuck Schumer (now the Minority Leader), but has chosen a few nominees of her own to recommend during her tenure.  During the Obama Administration, Gillibrand recommended the following district court judges: Judges Joan Azrack and LeShann DeArcy Hall on the Eastern District of New York; Judges Ronnie Abrams, Valerie Caproni and Analisa Torres on the Southern District of New York.  All of Gillibrand’s recommendations to the bench have been women and have been confirmed with near-unanimous support.  The lone exception is Caproni who attracted criticism from both the left and the right for her tenure as General Counsel at the FBI (Caproni even attracted the opposition of Sen. Jeff Merkley, a Democrat).

Kamala Harris

Elected to the U.S. Senate in 2016 from California, Harris has the distinction of herself being considered a top candidate for the Supreme Court.  Harris currently serves on the Senate Judiciary Committee and has voted on 85 Trump judicial appointees in her two years in the Senate.  Of the 59 nominees who received roll call votes, Harris opposed 38 on the floor.  She has been a particularly strong opponent of Trump’s appellate nominees, supporting just five of them: Judge Ralph Erickson; Michael Scudder; Judge Amy St. Eve; Mark Bennett; and Julius Richardson.  She has also been a vigorous questioner of Trump nominees, winning notice for her pointed and often precise questioning.

On the nomination front, Harris has been part of negotiations with the Trump Administration over a package of California nominees to the Ninth Circuit and district courts, although she has taken a smaller role than senior senator Dianne Feinstein, who is also the Ranking Member on the Senate Judiciary Committee.  A prospective deal over the nominees fell apart in late 2018 and the Trump Administration nominated three conservative candidates to the Ninth Circuit.  With a new White House Counsel coming in, Harris and Feinstein are still trying to negotiate a package.

Additionally, before she was a senator, Harris served as Attorney General of California from 2011 to 2017.  During this time, Harris served on the Commission of Judicial Appointments, which reviews all gubernatorial appointments to the California Supreme Court and the courts of appeal.  During Harris’ tenure, the Commission approved a number of left-leaning judges to California courts, including Justices Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Krueger.

John Kerry

A former Democratic presidential candidate and Secretary of State under President Obama, Kerry also served as U.S. Senator from Massachusetts from 1984 to 2013.  During his tenure, Kerry was primarily known for his expertise in international relations, as his senior senator, Sen. Ted Kennedy, primarily handled the judiciary issues for the state.  It was only after Kennedy’s death in 2009 that Kerry became the primary home-state senator on judiciary issues.  In that capacity, Kerry approved the selection of Denise Casper to serve on the U.S. District Court in Massachusetts (Casper had originally been selected by a Committee established by Kennedy).  Kerry also negotiated a nominations deal with Republican Sen. Scott Brown to fill two vacancies.  The deal would involve the nominations of U.S. Magistrate Judge Timothy Hillman, a Democrat, and Massachusetts Superior Court Judge Jeffrey Kinder, a Republican.  While Hillman was promptly nominated and confirmed, the Obama Administration refused to nominate Kinder, who eventually withdrew from consideration after Brown was defeated by Sen. Elizabeth Warren.

During his long tenure in the Senate, Kerry had the opportunity to vote on judges appointed by five different presidents (three Republican and two Democratic).  Kerry voted for most of them.  Nonetheless, Kerry voted against the Supreme Court nominations of Chief Justice William Rehnquist, Robert Bork, David Souter, Clarence Thomas, John Roberts, and Samuel Alito, while supporting Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Amy Klobuchar

Amy Klobuchar, who has served as U.S. Senator for Minnesota since 2006, has one of the more “moderate” records on judicial nominations among the current batch of Democratic senators.  Klobuchar has backed ten appellate nominees and all but eight district court picks.  In addition to the five that attracted the most Democratic votes, Klobuchar backed Judges Kevin Newsom and Elizabeth Branch to the 11th Circuit, Judge Joel Carson to the 10th Circuit, and Judge Kurt Engelhardt to the 5th Circuit.  Most notably, Klobuchar also supported Judge David Stras’ nomination to the 8th Circuit, a decision in which she was opposed by fellow Minnesota senators Al Franken and Tina Smith (Stras has since developed a strongly conservative record on the federal bench).

Regarding the nominations covering her home state, Klobuchar has shepherded four judicial nominations through the Senate.  Early in the Obama Administration, Klobuchar sponsored then-magistrate judge Susan Nelson to confirmation.  Later, she was able to leverage her relationships with Republican senators to secure the confirmation of Wilhemina Wright to the Minnesota District Court, even as many Republicans lined up against her, claiming that she had made negative comments about President Reagan.  During the Trump Administration, Klobuchar was able to shepherd through the unanimous confirmations of two moderate nominees, Judges Eric Tostrud (proposed by Rep. Eric Paulsen, a Republican), and Nancy Brasel (who Klobuchar herself pushed).

Jeff Merkley

Since his defeat of Sen. Gordon Smith in 2008, Merkley has been one of the most liberal voices in the U.S. Senate, including on judicial nominations.  During the Obama Administration, Merkley was one of the strongest supporters of Senate Majority Leader Harry Reid’s decision to end the filibuster on judicial nominees, a stance that conservatives brought up when Merkley led a 14-hour filibuster of Neil Gorsuch’s nomination in 2017.  However, Merkley’s outspokenness hasn’t led to the appointment of young liberals to the federal bench in Oregon.  During the Obama Administration, Merkley supported the renomination of Judge Marco Hernandez, a state judge originally tapped by President Bush, to fill a district court vacancy.  For two other vacancies, Merkley supported male judges in their 50s, Judges Michael Simon and Michael McShane.  During the Trump Administration, Merkley has supported Trump’s nomination of Karen Immergut, a former prosecutor who worked with Ken Starr in the 1990s.

On the flip side, Merkley successfully helped kill the 9th Circuit nomination of Ryan Bounds, who advanced through Committee over the opposition of Merkley and Sen. Ron Wyden.  Additionally, Merkley has strongly opposed most Trump judicial nominees, voting against 41 out of 59 on a roll call vote.

Bernie Sanders

One of two Independents in the Senate, Sanders has served as Senator from Vermont since 2006, and made a previous presidential run in 2016.  While Sanders’ view on judges did not get much airtime during 2016, he has since established himself as a frequent critic of Trump judges.  Sanders supported just 15 out of 59 judges on a roll call vote, one of the lowest support scores of any senator.  Sanders was the only senator to oppose the nomination of Judge Claria Horn Boom, an otherwise uncontroversial nominee in Kentucky.

During his entire tenure in the Senate, Sanders has served as a junior senator, and, as such, judge decisions have been deferred to senior senator Patrick Leahy, who also chaired the Judiciary Committee between 2007 and 2014.  Leahy selected Judges Christina Reiss and Geoffrey Crawford to serve on the Vermont federal bench, and Sanders supported both.

Elizabeth Warren

The first serious candidate to announce her run for the Presidency, Warren is one of the most liberal members of the senate, and has stuck out strongly liberal positions throughout her tenure, including on judges.  She has supported the fewest number of Trump appellate judges of any Democrat in the Senate, voting for just three, Scudder, St. Eve, and Bennett.  In total, Warren supported just 14 out of 59 Trump judges on a roll call vote, the lowest support score of any senator.

Almost immediately after her 2012 election to the Senate, Warren became the senior senator for Massachusetts, as Sen. John Kerry became Secretary of State.  In this role, Warren led the effort to select Massachusetts judicial nominations for the Obama Administration.  Warren supervised the confirmations of four district court nominees, Judges Mark Mastroianni, Indira Talwani, Leo Sorokin, and Allison Boroughs, all of whom were mainstream liberals in their early 50s (Warren supported the nomination of the similarly credentialed Inga Bernstein in the 114th Congress but she was not confirmed).  Warren did not push for the appointment of young attorneys, liberal academics, or candidates who sought to reshape the law from the progressive side, instead focusing on lawyers with 30+ years of practice.  Warren’s tenure also coincided with the confirmation of Judge David Barron to the First Circuit.  While Barron is more typical of the young liberal judges that many progressives wanted Obama to nominate, Barron’s nomination came from the Administration, not from Warren.

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