- Reuters/Eric Thayer
- Republicans just confirmed a bunch of circuit court judges last week. One expert said such a week only occurred twice over the three prior administrations. Democrats blasted the rapid-fire process.
While the first week of November was a banner time for special counsel Robert Mueller’s investigation and the Republicans’ proposal to cut taxes, an item that could affect the nation for decades flew under the radar.
Last week, Senate Republicans were able to confirm four of President Donald Trump’s judicial nominees for lifetime positions on circuit courts, in addition to one more to a district court post as a part of the president’s unprecedented judicial blitz.
Those who were confirmed included Michigan Supreme Court Judge Joan Larsen to serve on the US 6th Circuit Court of Appeals, conservative Notre Dame law professor Amy Coney Barrett to serve on the US 7th Circuit Court of Appeals, University of Pennsylvania law professor Stephanos Bibas to the US 3rd Circuit Court of Appeals, Colorado Supreme Court Judge Allison Eid to the US 10th Circuit Court of Appeals, and attorney Trevor McFadden to serve on the US District Court for the District of Columbia.
Seizing an opportunity to move forward on reshaping the federal court system to a more conservative bend, Senate Majority Leader Mitch McConnell worked to confirm the judges in rapid-fire succession, in a week that experts said was incredibly rare and drew the ire of Democrats who believe Republicans are being hypocritical in the confirmation process and not providing ample time to vet the candidates.
A week like that only happened twice in the past three administrations
Carl Tobias, a University of Richmond law professor and expert on judicial nominations, told Business Insider in an email that four such confirmations to circuit courts in a single week is “very rare.”
“That never happened in President George W. Bush’s eight years, and the most confirmed in any week was three,” he said. “It only happened once in [President Barack] Obama’s eight years, and that was an unusual circumstance. … It also happened only once in [President Bill] Clinton’s eight years.”
He added that he expects and hopes that the process “will return to a more normal pace and that the customs and traditions of the Senate will be restored and honored.”
“Despite the GOP call for ‘regular order,’ it has not respected many customs, which has a corrosive effect on collegiality and the institution,” he said.
The fast rate of judicial confirmations comes as McConnell has pushed for the GOP to crush one of Democrats’ biggest weapons in combating Trump’s nominations to the federal bench.
McConnell told has said that “blue slips” – a tradition that allows senators to give or withhold their blessing for a judicial nominee from their state – should be viewed as a confirmation of how a senator will vote on nominees, breaking with the norm of needing a blue-slip approval to move forward with a judicial nominee.
The blue-slip process gives the party that does not control the White House leverage over the president’s nominations, and some Democrats have used that power to deny a handful of Trump’s nominees from moving forward in the Judiciary Committee. That, in turn, makes it easier for Trump to advance nominees in states that do not have any Democratic Senate representation.
‘The hypocrisy we’re seeing on display is stunning’
Democratic Sen. Dianne Feinstein, the ranking member on the Senate Judiciary Committee, called the rapid-fire confirmations “irresponsible,” and added that Republicans were seeking to stack the courts in hopes of having certain important decisions that were not decided the way they preferred overturned or altered.
“Consider how many Trump actions have or will see time in the courtroom, and you begin to understand why Republicans are rushing to fill these vacancies – after allowing countless vacancies to remain unfilled at the end of the last administration,” the California Democrat said in a statement. “In each of the following cases, the president and Senate Republicans seem to hope that the outcome will be different with a transformed judiciary.”
She lamented the fact that Republicans are “now rushing” to fill these vacancies “after spending years blocking President Obama from filling many of these same vacancies. It actually is the most egregious effort I have ever seen.”
“The hypocrisy we’re seeing on display is stunning,” she said.
Meanwhile, McConnell’s maneuvering drew praise from both Trump and the White House.
“We appreciate the hard work of” Senate Judiciary Committee Chairman Chuck Grassley and McConnell, “and we urge the Senate to confirm all of the remaining nominees because it’s what the American people deserve,” White House deputy press secretary Hogan Gidley told Business Insider in an email.
Trump says ‘thanks’
Trump praised McConnell for his week of work on the judicial nominations earlier in the week.
“Thanks to @SenateMajLdr McConnell and the @SenateGOP we are appointing high-quality Federal District … and Appeals Court Judges at a record clip!” he said in the first of two tweets. “Our courts are rapidly changing for the better!”
The increased pace of confirmation followed both McConnell and Trump complaining about the slow rate at which judicial nominees were being moved through the confirmation process. Those nominations are an area in which Trump has, somewhat under the radar, worked to secure an early legacy in reshaping the federal judicial bench. The president was faced with an extraordinary number of vacancies on both district and circuit courts after Obama’s term.
And he has moved quickly to nominate people for those posts, which totaled in excess of 140 earlier in his term. In September, Trump hit 65 combined nominations between appeals courts, district courts, the US Tax Court, and the US Court of Federal Claims.
Last month, Trump criticized the pace of confirmation during a Cabinet meeting.
“They’re waiting forever on line,” he said. “It shouldn’t happen that way. It’s not right, it’s not fair.”