The Consultation Double-Standard

Let’s compare excerpts from the Senate Judiciary Questionnaires of two judicial nominees:

“In January 2017, I was asked separately by both Congressman Erik Paulsen and Congressman Tom Emmer if I would be interested in being nominated to fill a vacant position on the United States Court of Appeals for the Eighth Circuit.  I indicated I would be interested.  In early February 2017, Congressman Paulsen, Congressman Emmer, and Congressman Jason Lewis sent a letter to the White House recommending that I be nominated for the position.  Each congressman met with me separately.  Also in early February 2017, I corresponded and spoke with an official from the White House Counsel’s Office about the vacancy and my potential interest in the position…”

“There is a commission formed by Senators Baldwin and Johnson to recommend judicial candidates to the Senators.  I applied to that commission and was interviewed on November 18, 2014 in Madison, Wisconsin.  On May 7, 2015, Senator Baldwin asked for my permission to include my name on a list of candidates she sent to the White House for consideration…On October 28, 2015, I interviewed with staff from Senator Johnson’s office in Milwaukee, and on November 5, 2015, I interviewed with Senator Johnson at his office in Washington D.C.”

The first is the description of the judicial nomination process offered by Justice David Stras, nominated for a Minnesota seat on the Eighth Circuit, a state with two Democratic Senators.  The second is a description of the same process offered by Donald Schott, a Wisconsin attorney nominated by President Obama to a seat on the Seventh Circuit (but never confirmed).  At the time, Wisconsin had a Democratic and a Republican Senator.

Let’s look at other examples.  Here is Justice Joan Larsen’s path to a Michigan seat on the Sixth Circuit (Michigan has two Democratic Senators):

“Since March 9, 2017, I have been in contact with officials from the White House Counsel’s Office and the Department of Justice Office of Legal Policy about a potential federal judicial appointment.  On April 27, 2017, I interviewed with White House Counsel Don McGahn in Washington D.C.  On May 8, 2017, the President submitted my nomination to the Senate.”

In comparison, here is the path for Judge Carolyn McHugh, who was nominated by Obama to a Utah seat on the Tenth Circuit (Utah has two Republican Senators):

“In January 2013, I submitted a cover letter and resume to Senator Orrin Hatch and to Congressman Jim Matheson for a possible position on the Tenth Circuit.  On January 16, 2013, I interviewed with Senator Hatch and Senator Mike Lee, and on January 30, 2013, I interviewed with Congressman Jim Matheson.  On February 4, 2013, I was notified by Senator Hatch that he and Senator Lee would be recommending me to the White House for consideration.”  

The contrast is stark.  Compared to the Obama Administration, the Trump Administration has engaged in no pre-nomination consultation with Democratic Senators, instead cutting them out of the process.  Now, Senate Republicans are debating whether to support their Democratic colleagues on this issue, or to cut off one of their only avenues for recourse: the blue slip.

 

Consultation under Obama

On March 2, 2009, shortly after President Obama had been sworn into office with a large Democratic Senate majority, all 41 members of the Senate Republican conference sent him a letter with a clear missive: consult Republican home-state senators on nominees, or face a filibuster.  Specifically, the letter noted:

“The principle of senatorial consultation (or senatorial courtesy)…dates to the Administration of George Washington.  Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications for federal service.”

The letter goes on to state a bright-line rule on judicial nominees:

“…if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

To his credit, President Obama worked assiduously to engage Republican Senators on judicial nominees, allowing them to name circuit and district court candidates from their states, and refusing to nominate judges when he could not reach an agreement with home-state senators.  For his part, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) backed up his Republican colleagues by refusing to move forward with any nominee who did not have positive blue slips returned from both home-state senators, regardless of their party.  

In the six years that President Obama and Chairman Leahy served together, two circuit and seven district court nominees were blocked based on senatorial courtesy and blue slips:

  • Louis Butler – Western District of Wisconsin
  • Elissa Cadish – District of Nevada
  • Alison Lee – District of South Carolina
  • Jennifer May-Parker – Eastern District of North Carolina
  • Arvo Mikkanen – Northern District of Oklahoma
  • Victoria Nourse – Seventh Circuit Court of Appeals
  • Natasha Perdew Silas – Northern District of Georgia
  • Steven Six – Tenth Circuit Court of Appeals
  • William Thomas – Southern District of Florida

When Republicans took over the Senate majority in 2014, new Chairman Chuck Grassley continued to strictly enforce senatorial courtesy and blue slips.  During the last two years of the Obama Administration, blue slip use by Republicans ramped up, and the following nominees were blocked:

  • Donald Beatty – District of South Carolina
  • Mary Barzee Flores – Southern District of Florida
  • Rebecca Ross Haywood – Third Circuit Court of Appeals
  • Lisabeth Tabor Hughes – Sixth Circuit Court of Appeals
  • Abdul Kallon – Eleventh Circuit Court of Appeals
  • Myra Selby – Seventh Circuit Court of Appeals
  • Dax Erik Shepard – Northern District of Georgia
  • Patricia Timmons-Goodson – Eastern District of North Carolina

 

Consultation under Trump

Under a Trump Administration, Senate Republicans’ dedication to the even-handed application of senatorial courtesy has dimmed.  Rather, some Republicans seem to be ready to trash the “special responsibility” they once defended.

At any rate, such rhetoric may end being just that: rhetoric.  Tradition and principles aside, there are many practical reasons for keeping the blue slip.  Even if Republicans seek to look only at short-term interests, there is one key number to keep in mind: two.  In order words, if all Democrats line up against a nominee, Republicans can only afford to lose two of their own Senators without risking the judge’s confirmation.  While Senate Republicans may be able to muscle through a judge being blocked only based on ideology, it is hard to see them pushing a judge whose nomination was made with no consultation whatsoever.  

In other words, if the Trump Administration wants to see these nominees move, they’d do well to bring home state Democrats on board.  If nothing else, it gives the nominees a champion in the convoluted Senate confirmation process.  To use the words of the Senate Republican Conference:

“[Republicans], as a Conference, expect [senatorial consultations] to be observed, even-handedly and regardless of party affiliation.  And we will act to preserve this principle and the rights of our colleagues if it is not.”

President Trump Announces Ten New Judicial Nominations

Today, according to the Washington Times, President Trump nominated three judges to the U.S. Court of Appeals.  They are:

Stefanos Bibas, a law professor at the University of Pennsylvania and the director of the University’s Supreme Court Clinic, was nominated to the Third Circuit Court of Appeals.

Judge Ralph Erickson, a federal trial judge on the U.S. District Court for the District of North Dakota, was nominated to the Eighth Circuit Court of Appeals.

Justice Allison Eid of the Colorado Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Tenth Circuit Court of Appeals.

Trump also named three judges to the U.S. District Courts.  They are:

Claria Horn Boom, a Lexington attorney, was nominated to a joint seat on the Eastern and Western Districts of Kentucky.

Timothy J. Kelly, chief counsel to Senate Judiciary Committee Chairman Chuck Grassley, was nominated to the U.S. District Court for the District of Columbia.

Trevor McFadden, a deputy assistant attorney general in the Department of Justice, was nominated to the U.S. District Court for the District of Columbia.

Finally, Trump nominated Stephen S. Schwartz to the U.S. Court of Federal Claims, and Michael P. Allen, Amanda Meredith, & Joseph Toth to the U.S. Court of Appeals for Veterans Claims.

Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

Senate Judiciary Committee Advances Thapar’s Nomination to the Floor

Today, the Senate Judiciary Committee advanced the nomination of Judge Amul Thapar to the U.S. Court of Appeals to the Sixth Circuit.  The vote to move his nomination was 11-8, with all Republicans voting in favor, and all Democrats voting against (Senator Mazie Hirono did not cast a vote).

In explaining her opposition, Senator Feinstein (D-CA), the ranking member of the committee, noted Thapar’s decision in Winter v. Wolnitzek.  This blog discussed Winter and other cases where Thapar had been reversed here.

Thapar now joins a small but growing list of nominees waiting for a floor vote.  Given his close ties to Senate Majority Leader Mitch McConnell, it would not be surprising to see Thapar called up for a confirmation vote before the Memorial Day recess.

President Trump Announces Ten Nominees to the Federal Bench

Today, President Trump nominated five judges to the U.S. Court of Appeals.  They are:

John K. Bush, a partner at the Louisville office of Bingham, Greenebaum, Doll LLP. and the President of the Louisville Chapter of the Federalist Society, was nominated to the Sixth Circuit Court of Appeals.

Justice Joan Larsen of the Michigan Supreme Court, a former clerk of Justice Antonin Scalia, was nominated to the Sixth Circuit Court of Appeals.

Amy Coney Barrett, a professor at the University of Notre Dame Law School, and a former clerk of Justice Antonin Scalia, was nominated to the Seventh Circuit Court of Appeals.

Justice David Stras of the Minnesota Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Eighth Circuit Court of Appeals.

Kevin Newsom, a partner at Bradley Arant Boult, and a former clark of Justice David Souter, was nominated to the Eleventh Circuit Court of Appeals.

Trump also nominated four judges to the U.S. District Courts.  They are:

Terry Moorer, a U.S. Magistrate Judge, was nominated to the U.S. District Court for the Middle District of Alabama.

Dabney Friedrich, a former member of the U.S. Sentencing Commission, was nominated to the U.S. District Court for the District of Columbia.

David Nye, a judge on the Sixth District Court of Idaho, was nominated to the U.S. District Court for the District of Idaho.

Scott L. Palk, an assistant law dean at the University of Oklahoma Law School, was nominated to the U.S. District Court for the Western District of Oklahoma.

Finally, Trump nominated Damien Schiff, a senior attorney with the Pacific Legal Foundation, was nominated to the U.S. Court of Federal Claims.

Judge Neil Gorsuch CONFIRMED as Associate Justice to the United States Supreme Court

The U.S. Senate has confirmed Judge Neil Gorsuch to serve as Associate Justice to the U.S. Supreme Court, filling the seat vacated last year with the death of Associate Justice Antonin Scalia.  The 49 year old Gorsuch will be President Trump’s first appointee to the high court, as well as the first Article III judge he has successfully appointed.

The final roll call on the nomination was 54-45, the second narrowest margin for a successful Supreme Court nominee in modern times (the narrowest being Justice Clarence Thomas’ 52-48 confirmation in 1991).  Every Republican Senator supported confirmation, joined by 3 Democratic Senators: Senators Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), and Joe Manchin (D-WV).