The Senate Judiciary Committee advanced the nominations of 44 of President Donald Trump’s judicial appointees Thursday, as Democrats complained Republicans are moving too quickly on unqualified or controversial nominees.
The nominees included Wendy Vitter, who during her confirmation hearing declined to say whether the landmark opinion of Brown v. Board was correctly decided, and four nominees for appellate court seats who drew objections from their Democratic home state senators, one of whom is a top Justice Department lawyer who signed briefs defending some of the Trump administration’s most controversial policies.
During the last Congress, the Trump administration broke records for appellate seat confirmations. Thursday’s list included six more to sit on appeals courts across the country. The nominations now head to the full Senate, where Republicans hold a 53-47 advantage.
“We are all diminished” when lawmakers barrel through these hearings, said Democratic Sen. Dick Durbin, who urged the White House to allow more consultation especially for circuit court nominees that critics say are outside of the mainstream. For their part, Republicans are frustrated that Democrats are slow-walking confirmations by taking advantage of Senate rules that allow 30 hours of debate.
The move comes as Republican Sens. Roy Blunt and James Lankford introduced a resolution that would again change the rules to make it easier to confirm district court judges by reducing the time of post-cloture debate from 30 hours to two.
Thursday’s session was a replay of several similar hearings during the last two years, breaking down over partisan divides with each side blaming the other for the disintegration of the process and expressing resignation about a way forward.
Judiciary Chairman Lindsey Graham, R-South Carolina, said that there has been “politicization” of the judicial process but that both sides of the aisle are at fault stemming from a decision by then Senate Majority Leader Harry Reid, a Democrat, in 2013 to change the rules for lower court judges and executive branch agencies, eliminating the ability to filibuster those nominations.
“I really worry about what is happening with our judiciary,” Sen. John Kennedy, R-Louisiana, said. “I’m really worried about the judiciary being politicized ….by all of us,” he said and then added, “I don’t know what to do about it.”
At a talk Wednesday night, Chief Justice John Roberts again reiterated a sentiment he has said before speaking broadly: “The process is not working the way it’s supposed to,” he said according to the The Tennessean.
“All too often you have members of the committee asking questions that they know the nominee can’t really answer,” Roberts said. “I don’t think that’s helpful.”
Top committee Democrat Dianne Feinstein responded that “things are raw” on her side of the aisle after the Republican-led Senate failed to hold a hearing for Judge Merrick Garland, President Barack Obama’s nominee to take the seat of the late Justice Antonin Scalia on the Supreme Court.
Sen. Kamala Harris said that Trump was appointing nominees who are “extreme” and outside of the mainstream.
She spoke about the testimony of Vitter, from last year who declined to say whether she thought Brown v. Board of Education –the landmark opinion from 1954 that struck down school segregation – was correctly decided. She is up for a seat as a district court judge for the Eastern District of Louisiana.
Others criticized Chad Readler, who served as acting assistant attorney general and whose name was on controversial briefs declining to defend key provisions of the Affordable Care Act. He has been nominated for a seat on the Sixth Circuit Court of Appeals.
In addition three other nominees, Eric Miller for the Ninth Circuit, Paul B. Matey for the Third Circuit and Eric E. Murphy for the Sixth Circuit were opposed by home-state Democratic senators but still nominated.
Kennedy, who spoke at length at one point, acknowledged that if he were president he wouldn’t have nominated some people on the list. “Not because they are bad people, but because I think there might be better people,” he said. But he concluded, “a president is entitled to name whoever they want to.”
One bone of contention for Democrats is over “blue slips,” a Senate tradition whereby home state senators have been allowed to give their input into which nominees are confirmed.
The blue slip process dates back to the early 1900s when the Judiciary Committee began asking senators from a nominee’s home state to state their opinion of the nominee on a blue piece of paper, giving the senators the power to stop certain nominees.
But the process has changed over the years with different chairmen.
Former committee chairman Chuck Grassley would allow blue slips to impact the nomination for district court seats, but not those for appellate courts.
On Thursday, Graham presented his position on the contentious issue that sounded much like the policy followed by Grassley, although he pledged to consult with his colleagues himself on the issue.
At the hearing, Graham nodded to the fact that a number of Democrats on the panel are running to unseat Trump in 2020, which would give them ultimate control in picking federal judges.
“I’m going to do this the golden rule – one day you’ll be in charge, it’s just a matter of time. And one of you may be president on this committee. The odds are pretty good – like half the people in the committee are running for president. All talented,” Graham said.
“If you get to be president and I’m still around, I’ll try to work with you the best I know how, but sometimes we just can’t agree,” he said.
“The one thing I can promise my Democratic colleagues – and all this happened before I got here – is that I will get in a room with you when it comes time for circuit court nominations and see if we can find a compromise with the White House,” Graham said.
Democrats across from Graham at the hearing smiled as he joked about the “golden rule” and the political prospects of the few senators.
Sen. Cory Booker, who announced his candidacy for president last week and has protested the pending confirmation of a circuit court judge in New Jersey, grinned, and Sen. Patrick Leahy, the 78-year-old former committee chairman, cried out, “I’m not.”