The Republican right is engaging in a big push to change the face of the federal judiciary. They are pressuring the Senate Republicans to accelerate the process of confirming nominees, hoping the Senate will rubber stamp the Trump appointees.
President Trump came into office with more than 120 vacancies awaiting him. Today there are 150 vacancies, 21 in the powerful Circuit Courts of Appeals. Why so many?
Answering that question requires a bit of history. In 2003, in the 108thCongress, the then-Democratic minority began blocking a number of President George W. Bush’s nominees for the Circuit Courts. Democrats believed that a number of the Bush nominees were too extreme, outside of the judicial mainstream. The president and the GOP majority in the Senate became increasing enraged as the number of blocked nominations rose to ten by 2005.
Majority Leader Bill Frist began threatening to use a parliamentary ploy, we now refer to as “the nuclear option” to cut off the Democratic filibusters by simple majority vote. This unprecedented action was vehemently opposed by the Democrats. A bipartisan group of seven Democrats and seven Republicans, often called the “Gang of Fourteen” came together and forged a compromise. Three of the nominees were confirmed and some were withdrawn. The senators involved agreed not to filibuster judicial nominees except in "extraordinary circumstances."
During the Obama Administration, the Republican minority in the Senate began opposing many of his nominees, including four for the D.C. Circuit Court of Appeals. Once again, the threat of the nuclear option arose. This time it was the Democrats issuing the threats.
In November 2013, frustrated by continuing GOP filibusters against Obama nominations, Majority Leader Harry Reid pulled the trigger. The Senate rules were twisted, using the nuclear option to create the precedent that only a simple majority, not the 60 votes specified in the rules, were necessary to end the filibuster. The new precedent applied only to executive branch nominees and judicial nominees below the level of the Supreme Court.
In the year that followed, more than 100 Obama judges were confirmed, most after a cloture vote decided by simple majority. Now it was the Republican's turn to be outraged.
When the GOP regained control of the Senate in 2015, they slowed the process to a near halt. Only a trickle of Obama appointed judges were confirmed.
This blockade was capped by Majority Leader Mitch McConnell’s announcement within an hour of learning of the death of Supreme Court Justice Antonin Scalia. McConnell declared that, “…this vacancy should not be filled until we have a new president.” This was February 2016.
President Obama appointed Merrick Garland to the Scalia seat, but the Republican Senate refused to hold hearings and consider the nomination, as the Constitution requires.
McConnell held the line until President Donald Trump was elected. Trump appointed Neil Gorsuch to the Court. The enraged Democrats launched a filibuster of Gorsuch. In April 2017, McConnell and the Republicans rolled out the controversial nuclear option precedent and extended it to cover the Supreme Court. This enabled them to end the Democrats’ filibuster by simple majority vote.
The net effect of these two uses of the nuclear option is to assure that presidents who have a majority in the Senate can ignore the minority at will and choose ideologically extreme candidates if they so choose.
This is essentially what President Trump has done. Ignoring the Senate minority, he has appointed judges mostly from the Republican right’s wish list.
In a continuation of the battle, Democrats are filibustering these nominees. However, they are now hoist with their own petard. The Republicans can confirm these judges with only a simple majority.
Not satisfied, outside groups are pressuring McConnell and the Republicans to end the use of the “blue slip” in the Senate Judiciary Committee. This practice, more than 100 years old, carried out by Judiciary Committee chairs from both parties, require that the Committee not act on nominees unless the senators (of either party) from the state or states involved sign off on the nominee.
This procedure has encouraged bipartisan consultation between presidents of both parties and senators.
Majority Leader McConnell has now said that he intends to end the blue slip process. However, Judiciary Committee Chair Chuck Grassley (R-IA) appears not to agree.
If the blue slip is eliminated, this will exacerbate the effects we are seeing in the wake of the nuclear option. The minority in the Senate will be utterly powerless. Increasingly, the federal courts will be divided between ideologues on both extremes.
Richard A. Arenberg is a Visiting Lecturer in Political Science and International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.