WASHINGTON – Senate Republicans are racing to confirm as many federal judges as they can before November’s midterm elections when control of the Senate could flip to Democrats.
It’s a process that was made easier by then Majority Leader Harry Reid’s 2013 decision to exercise the so-called “nuclear option,” ending the minority party’s ability to use the filibuster to block nominees. It now requires only a simple majority to move a nominee through the Senate.
Democrats are left with only a couple of procedural weapons to stall President Trump’s court picks. One of them is forcing 30 hours of debate on each nominee. Considering the sheer number of federal court vacancies – 148 in all – that’s no small impediment, one that has frustrated Senate Majority Leader Mitch McConnell. “We’re going to confirm these judges. I don’t care what tactics they employ,” he recently told Fox News’s Martha MacCallum.
One technique Republicans are using to meet McConnell’s mandate to free up the backlog is a change in the Senate’s “blue slip” process. Senators from a nominee’s home state have traditionally had the power to withhold a blue slip on a nominee’s qualifications to the Judiciary Committee Chairman. Such a thumbs down effectively blocked the President’s pick.
“That’s no longer the case when it comes to appellate nominees,” said Leonard Leo, formerly of the conservative Federalist Society now serving as President Trump’s closest advisor on judicial picks. “As long as there’s been adequate consultation with the White House and those home state senators,” the power of a negative blue slip is effectively rendered impotent. That exception does not apply to district court judges or trial judges.
The effectiveness of the blue slip change was demonstrated Wednesday in the confirmation hearing of President Trump’s nominee for the Ninth Circuit Court of Appeals, Ryan Bounds. Home state Senators Ron Wyden and Jeff Merkley opposed his nomination, but the blue slip change means they can’t block him.
Democrats attacked Rounds anyway, honing in an article he wrote while at Stanford University. The article criticized the university’s policy that forced students to attend sensitivity training after a homophobic incident on campus.
Delaware Democrat Chris Coons quoted from Bounds’ article. “You claimed that LGBTQ people, students, people of color, and other communities like to “fancy themselves oppressed,” and therefore see instances of discrimination that don’t reflect reality.”
Bounds apologized for his “overheated rhetoric” as a student, and then recounted how some gay friends of his were once assaulted after an evening out.
“How did that make you feel?” asked Coons. Bounds took a deep breathe, paused for several seconds, and appeared to choke back tears, before replying.
“It was very upsetting,” he said.
Bounds is one of several nominees that Republicans hope to place in the 9th Circuit. It encompasses nine western states. It’s the largest and most liberal circuit in the land and is ripe for change, with seven appellate vacancies and 19 others in the circuit courts.