A bounty of federal judicial appointments awaits the Trump Administration, which has methodically begun to announce nominees to the roughly 130 judicial vacancies that exist on the Article III federal bench. After securing the successful confirmations of Associate Justice Neil M. Gorsuch to the United States Supreme Court and Judge Amul R. Thapar of Kentucky to the Sixth Circuit appeals court, the White House announced another 10 nominees in May and another 11 in June. More are likely to come in the months ahead.

While political roadblocks continue to stymie the progress of the Trump legislative agenda, the President could potentially succeed in reshaping a major portion of the federal bench over the next 18 months. The super-sized number of existing judicial vacancies, a historic number, is largely the product of Republican-engineered delay that stranded countless Obama judicial nominees during the last Congress. Now the Trump White House stands to capitalize on the situation. Senate Majority Leader Mitch McConnell (R-KY) needs to muster only 51 votes from the 52 Senate Republicans to confirm all Trump-nominated judicial candidates. Democrats ultimately will be able to do relatively little to successfully block nominees in such cases, with the judicial filibuster gone as a tool of delay.

Mainstream judicial nominees with solid qualifications will make it relatively easy for Majority Leader McConnell to keep his 52 Republicans in line and keep the confirmation conveyor belt moving, even if powered only by party-line votes. Ironically, the Senate Democrats are haunted by their decision in November 2013 to exercise the nuclear option and eliminate the 60-vote requirement to cut off debate on district and circuit court nominees. To compound the damage, Senate Republicans in April expanded the nuclear option and eliminated the judicial filibuster of Supreme Court candidates, leaving only the legislative filibuster intact.

Trump’s Reset of the Nomination Process

Despite these advantages, the pace of Trump’s filling of judicial vacancies will remain relatively slow in the months ahead, due to several factors. Foremost is the President’s decision, made soon after his election win, to reset the judicial nomination process and request all Senators with judicial vacancies in their states to restart their efforts to recommend judicial candidates for nomination, regardless where the judicial nomination process stood at the end of the last Congress.

That reset will result in new nominees in some cases, and in others it could result in the renomination of the same nominees originally promoted by Republican home state Senators and nominated by President Obama. In addition to finding candidates for the judicial bench, Republican Senators have also had their hands full in screening candidates for United States Attorney and United States Marshal posts in their states. The political complexity and time-intensiveness of these screening efforts is considerable; in some states, home state Senator vetting will likely stretch into the fall.

Tensions over the Blue Slip Process

In the meantime, a new round of partisan bickering between Senate Republicans and Democrats has broken out over the future of the blue slip. The blue slip is, literally, a blue form that, when completed by each of a nominee’s two home state Senators, permits the nominee to receive a Senate Judiciary Committee hearing, a necessary step before being reported out for a final Senate vote. Home state Senators in their own discretion determine when to return their blue slip signifying their endorsement. Under current Senate practice, a Judiciary Committee hearing on a nominee is not scheduled until the chairman of the committee is in possession of both blue slips, regardless how long that may take.

Given a Senator’s ability to delay the return of their blue slip, the blue slip represents the last major tool available to Senate Democrats to leverage the nomination process, and some already have publicly called for aggressive slow-walking of blue slips. In response, Republicans have warned Democrats that uncompromising use of the blue slip could force their hand and cause them drop the blue slip practice, which is not required by existing Senate rules. Some conservative groups in fact have urged Majority Leader McConnell and Senate Judiciary Committee Chairman Charles E. Grassley (R-IA) to relax the use of the blue slip, especially on circuit court nominees. Chairman Grassley has indicated he intends to abide by the blue slip process, at least for the time being.


Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer.
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