A Lasting Trump Future for the Federal Bench
Supreme Court Justice Neil Gorsuch (L) talks with Chief Justice John Roberts (R) on the steps of the Supreme Court following his official investiture at the Supreme Court June 15, 2017, in Washington, D.C. (Win McNamee/Getty Images
The pace is picking up. Republicans in the Senate, led by Majority Leader Mitch McConnell, bolstered by outside conservative groups like the Heritage Foundation and the Federalist Society, are fast-tracking nominees to lifetime seats on the federal bench.
Sixteen Trump-appointed judges have already been confirmed by the Senate and are serving in the courts, including Supreme Court Justice Neil Gorsuch. The president has nominated more than 60 more, 18 for the powerful Circuit Courts, one level below the Supreme Court. These courts decide far more cases than the Supreme Court does. (The Supreme Court agreed to hear only about 70 cases of about 7,000 filed in 2015.)
There are 144 vacancies in the three levels of federal courts with many more to come. President Trump will have the opportunity to reshape the federal judiciary for a generation and the Republican Senate is accelerating the process.
Democrats unwittingly assisted in building the foundation for Trump’s judicial fast-track. Back in 2013, then-Majority Leader Harry Reid led Democrats, frustrated by continuing GOP filibusters against President Obama’s nominations, to use a controversial parliamentary ploy known as the “nuclear option” to twist the Senate rules and create a new precedent for interpreting them. The outcome was that debate on judicial nominees below the level of the Supreme Court could be ended by the majority acting alone. Only a simple majority, not the 60 votes specified in the rules (three-fifths of senators dully chosen and sworn), were to be necessary to end debate.
Four years later, Republicans control the Senate, and in order to fast-track the Gorsuch nomination, they used the precedent created by the Democrats and extended the novel interpretation of the filibuster rules to include Supreme Court nominees. Of course, the Gorsuch nomination only existed because the Republican majority refused to even consider President Obama’s nomination of Merrick Garland in February 2016, nearly a year before President Trump even took office.
As I have written here before, the net effect of both parties' ill-considered use of the nuclear option is to assure that presidents who have a majority in the Senate can select ideologically extreme candidates if they so choose. This is a prescription for politically polarized courts.
That is what President Trump is doing. Ignoring input from the Senate minority, he is selecting nominees from the Republican right’s wish list. In fact, 7 of the 16 Trump nominees confirmed so far have received fewer than 60 votes.
Some are even absurdly unqualified. For example, he nominated and the Republicans on the Senate Judiciary Committee confirmed Brett J. Talley to serve as a judge on the U.S. District Court for the Middle District of Alabama. It’s reported that the nominee has never tried a case. The non-partisan American Bar Association’s (ABA) Standing Committee on the Federal Judiciary has unanimously rated Talley as “not qualified.” If confirmed by the Senate, Talley will serve a lifetime appointment. Since Talley is only 36 years old, he could conceivably sit on the court for 40 or 50 years.
In fact, the ABA has rated four Trump nominees so far as not qualified, including Leonard Steven Grasz, nominated for the 8th Circuit Court of Appeals, who is likely to be confirmed by the Senate majority this week. The Senate Judiciary Committee favorably reported his nomination by an 11-9 straight party-line vote. Grasz is the first circuit court nominee rated not qualified in more than 11 years.
As a result, President Trump is giving ABA ratings little credence and Senate Republicans are questioning the organization's credibility. Judiciary Committee member Senator Ben Sasse (R-NE) has declared, “The ABA cannot take blatantly liberal positions on the one hand and then masquerade as a neutral party on the other and then demand a special seat at the table in the Senate Judiciary Committee and in the Senate to try and tell us who is and isn’t supposedly qualified to be a judge.”
However, the squashing of the filibuster on judicial nominees did not create a swift enough fast-track for the Senate Republicans. Judiciary Committee Chairman Chuck Grassley (R-IA), under pressure from outside conservative groups, weakened the Senate’s blue slip tradition.
The blue slip was a process whereby home-state senators could delay or block hearings on nominees for federal courts in their state. It has long been important as a way of building bipartisan support for mainstream judicial nominees and has served to allow senators to protect their state’s interests. The Judiciary Committee’s Ranking Democrat Senator Dianne Feinstein (D-CA) argued, “Chairman Grassley’s decision do away with a 100-year old Senate tradition just 10 months into the Trump administration couldn’t be more troubling…The lengths to which Republicans are going to jam extremely conservative and controversial nominees through the Senate is unprecedented." Former chairman of the Committee, Patrick Leahy (D-VT) has said, “I’ve had that pressure and I’ve stood up to it…Reversing course on your own policy simply due to a change in the White House can do lasting damage to the integrity of this committee.”
Another troubling aspect of the rush to confirm the Trump judges is that the nominees are overwhelmingly white and male. Of the more than 60 nominations Trump has made, only 11 are female, one is African-American and one is Hispanic.
This stands in sharp contrast to his predecessor. President Obama over his two terms appointed 324 judges. Women made up 41.9 percent of the judges he put on the court and 19 percent were African American and 10 percent were Hispanic.
As if all this were not enough, conservative forces are massing to support a transparently political proposal put forward by Federalist Society co-founder Steven Calabresi to increase the number of federal judges by about 33 percent.
As Linda Greenhouse writing in The New York Times commented about efforts to politicize and polarize the courts, “A weaponized judiciary poses real dangers to the legitimacy of the federal courts, and there’s no point in pretending otherwise.” In my view, continuing down the path of majority party domination poses a continuing danger to the courts and to the integrity of the Senate’s confirmation process.
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. To read more of his reports