Senate Democrats Again Attack Judicial Nominees for Not Sharing Personal Views

Perhaps realizing that their ahistorical and inaccurate laments over the death of the blue slip tradition last week were ineffective, during today's Senate Judiciary Committee meeting, Democrats returned to attacking President Trump's judicial nominees' qualifications.  Today is the 64th anniversary of Brown v. Board of Education of Topeka, so the Democrats chose that as their preferred mode of attack.

Texas Senator and Majority Whip John Cornyn identified the root of their weak arguments - justification for their blind opposition to all of President Trump's nominees (beginning at 50:00):

I agree with Senator Kennedy that many of the nominees have become overly cautious and unwilling to discuss substantive legal arguments that would be entirely appropriate to ask about.  But I understand why they've become so cautious.  Because a comment made in a political campaign like Mr. Truncale or by Wendy Vitter as sort of a throwaway line when she recognized the binding nature of the Brown decision -- all these are used as excuses and fodder to oppose, uniformly almost, the President's nominees.  And so, perhaps they have become overly cautious and unwilling to have a fulsome discussion.  If in fact this were what I would call [an] unbiased forum for discussion of these issues, I think you would find a different sort of outcome.   

But the idea that the witnesses somehow don't recognize the binding nature of Brown v. Board of Education is ludicrous.  It's a phony, made-up issue.  Everybody recognizes that Brown v. Board of Education as being binding precedent of the United States Supreme Court.  So the idea that somehow these witnesses are unwilling to commit to it or agree to it because of their concern about their ethical  obligations and to suggest that that implies that somehow they would not apply it as the binding precedent of the United States Supreme Court is a ruse.  It's a made-up issue.   

So, Mr. Oldham is too young to be confirmed to the United States Court of Appeals to the Fifth Circuit.  He's 39 years old.  And I guess I don't know what age limit our Democratic colleagues would consider people eligible for the Court of Appeals.  It sounds like some form of age discrimination to me, to say arbitrarily if you're 39 years old, you're too young.  Notwithstanding his incredible academic and legal background, which is really impressive.  And then the suggestion that Mr. Oldham is somehow disqualified because he has represented, zealously represented, his client in court and to somehow say that because he's an advocate, he must therefore share those views personally, when he said his personal views will not dictate his legal judgment -- those are two separate things -- I think again is really pretext for uniformly opposing this President's nominees. 

We know that almost all of these are going to voted on on party line, and I guess there has to be some reason to object to these nominees.  But the idea that somebody is too young, or disqualified because they represented a client in court and those views may be unpopular with our Democratic colleagues, or that somehow personal views are more important than your fidelity to the law, when in fact I think uniformly the nominees have said they would not impose their personal views but would enforce the law: this makes no sense to me.

Tom Jipping, who has newly joined the Heritage Foundation and National Review's Bench Memos after being Senator Orrin Hatch's nominations counsel for many years, reminded us in his first Bench Memos post that our entire system of the rule of law relies on judges interpreting the law without imposing their personal views:

Today, in the Judiciary Committee’s business meeting, Chairman Charles Grassley addressed efforts to force judicial nominees to express personal views on issues or cases in their confirmation hearings. . . . Grassley was correct to oppose this approach. The push for nominees to express personal views undermines not only the impartiality on which the legitimacy of our judicial system depends, but the confidence of our fellow citizens in that system. . . .

America’s Founders established a system of government designed to maximize ordered liberty by limiting government. . . . And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible.

Thanks to Chairman Grassley, Senator Cornyn, and many other Republican senators on the committee who strongly defended the nominees against the Democrats "phony, made-up" objections (see Utah Senator Mike Lee's statement beginning at 1:05:28). 

Today in Judicial Confirmations: Brennan Confirmed to 7th Circuit; Democrats Continue to Argue Blue Slip History

Today, the Senate confirmed Judge Michael Brennan to the Seventh Circuit and invoked cloture on Joel Carson (Tenth Circuit) and John Nalbandian (Sixth Circuit).  The Senate Judiciary Committee favorably reported Mark Bennett (Ninth Circuit), Nancy E. Brasel (D. Minn.), Robert R. Summerhays (W.D. La.), and Eric C. Tostrud (D. Minn.) to the Senate.

In the past few days, the Senate Democrats have turned to complaining about Chairman Chuck Grassley's blue slip policy, instead of attacking these excellent nominees' qualifications and merits, which has been a largely failed strategy. Chairman Grassley defended his blue slip policy on the Senate floor yesterday, as we described in yesterday's blog post.

Chairman Grassley reiterated at today's Senate Judiciary meeting that rather than his blue slip policy being unprecedented, the obstruction and delays by the Senate Democrats are truly what is unprecedented.  He described how blue slips entitle senators to consultation, not a one-person veto to the President's exercise of his authority. He has ensured that the purpose of the blue slip has been carried out for all nominees by requesting from the White House consultation logs for senators who have refused to return blue slips before he went ahead with hearings.

Senator Roy Blunt of Missouri also called out the Senate Democrats' obstruction on the Senate floor yesterday:

The fact that the Senate's time is taken in a way that it never has been before to process the president's nominations is outrageous. It's just outrageous. There's some view that, well, we need more time to think about the nominee. There's plenty of time to do that. It's called the committee process. It's called a vetting process that also may very well take too long now, but there is plenty of time for these circuit court nominees that we're voting on this week to be vetted.  There’s plenty of time to ask them questions.  There’s plenty of time to look into their background.  

The only reason, in my view, that we take the time we’re taking to do six votes, basically six votes on six judges in a week.  That's six 15-minute votes, if we were efficient enough to do that, that would be an hour and a half we’d take to vote on these six judges, and the final vote on none of them would be different than taking five days.  So why do you take five days?  You take five days because that means we can’t get to anything else.  Not only does it mean that the President’s ability to populate the government, as people elected him to do, is diminished, but also it eliminates the time we have to do the other work that the Senate is designed to do.  The Senate is in, as the Majority Leader likes to describe it, the personnel business, but it’s not supposed to be the only business of the Senate. 

I think we’ve [had] now over 90 of these cloture motions on nominees that the President’s made.  90.  Now, what does that mean?  In the previous six administrations, in the first two years of each of them, there was a total of 24 cloture motions – . . . 24 times, six presidents, in the first two years, an average of four times.  We’re going to certainly be to 104 times well before the end of two years. . . . 

No votes will be persuaded by running the clock.  No votes will be changed by running the clock.  And the power, of course, to put people on a federal bench for life is an important power given in the Constitution to the President for the Supreme Court and such other courts as the Congress may determine the country needs.  It’s not a thing to be taken lightly, but it’s also not a thing to be abused.  It’s not a process where the protection that you might use four times in two years is suddenly used 90 times in 15 months.  Something is wrong when that has happened to the process.

The Senate will reconvene next week to consider cloture motions on three additional circuit court nominees and vote on the Carson and Nalbandian nominations. Thanks to Chairman Grassley, Majority Leader Mitch McConnell, and the Senate Republicans, the Democrats are only able to delay nominations and prevent the Senate from dealing with its other business but not ultimately prevent the confirmation of President Trump's excellent judicial nominees.

Circuit Judge Week: Bounds Hearing Complete, Engelhardt Confirmed & Cloture Filed in Brennan Nomination

As we highlighted earlier this week, this is an important week for many of President Trump's judicial nominees, especially circuit court nominees. Several noteworthy events happened today.


Ryan Bounds
Today, Ryan Bounds, nominated to the Ninth Circuit Court of Appeals back in September 2017, finally had his Senate confirmation hearing (which can be viewed here). Bounds did very well and answered all the questions posed to him. Nonetheless, the obstructionist Senate Democrats brought up two attack narratives which have been repeatedly debunked: some notion that Bounds was less than transparent in providing documents during his initial vetting and arguing that the blue slip tradition is being abandoned.

First, some Senate Democrats tried to claim that Bounds was less than transparent during the vetting process, citing articles he wrote in college that poked fun at political correctness and attempted to offer a commentary on problems he saw in his college community. Ironically, Senator Ron Wyden of Oregon attempted to lead this attack, as could be seen on his Senate Floor speech yesterday (at about the 2:00:00 mark). However, as Ed Whelan points out, it was Wyden's own office that advised Bound to only go back through law school for pre-nomination vetting. So, not only is Wyden misleading in this attack, but Bounds followed the advice he sought from Wyden's Office. Further, once there was some question about these writings, Bounds provided these articles for review and further vetting.

Second, many Senate Democrats chose to argue the blue slips talking points again. Throughout the Bounds' hearing, a variety of Senate Democrats repeatedly attempted to bring up that the blue slip tradition has been abandoned or somehow modified. But it has not.

Following Bounds' hearing, Chairman Chuck Grassley delivered a speech on the Senate Floor highlighting the blue slip process under his chairmanship. He specifically noted (around the 3:41:00 mark):

[I]t is my prerogative to have the same blue slip policy as Chairman Biden and Kennedy and the vast majority of predecessors. Accordingly, I have said this, that negative or unreturned blue slips will not necessarily preclude the hearing for circuit court nominees unless the White House failed to consult with home state senators. And I get all sorts of information–I demand all sorts of information from the White House on this sort of consultation that's gone on. That is why I held hearings for David Stras, Kyle Duncan, Michael Brennan and Ryan Bounds despite the lack of two positive blue slips from home state senators. This policy is completely bipartisan. I've applied it to blue slips of Democratic and Republican senators. . . .

This speech is consistent with Chairman Grassley's explanation since the blue slip process became "controversial." Repeatedly, Chairman Grassley has explained how he will handle blue slips in his Judiciary Committee.


Kurt Engelhardt & Michael Brennan
On Senate Floor today, the Senate confirmed District Court Judge Kurt Engelhardt to the Fifth Circuit Court of Appeals, with a vote of 62-34. 

The Senate also voted to invoke cloture regarding the nomination of Michael Brennan to the Seventh Circuit Court of Appeals. As you may remember, Brennan is another nominee that the obstructionist Senate Democrats attempted to cry foul over the blue slip process. This will be another major vote to watch later this week.


We applaud and thank Leader Mitch McConnell and Chairman Chuck Grassley for their leadership in filling these important judicial vacancies and working to solve our judicial crisis. By filling these posts, the federal courts will run more efficiently and with less of a backlog caused by understaffed courts and overloaded dockets.

Big Week in Judicial Confirmations

This week is a busy and important one for judicial confirmations.  First, the Senate is taking confirmation votes on six excellent circuit court nominees: Michael B. Brennan (Seventh Circuit), Joel M. Carson (Tenth Circuit), Kurt D. Engelhardt (Fifth Circuit), John B. Nalbandian (Sixth Circuit), Michael Y. Scudder (Seventh Circuit), and Amy J. St. Eve (Seventh Circuit).  The Senate invoked cloture on Judge Engelhardt's nomination this evening, 64 to 31.

Majority Leader McConnell is threatening to hold the Senate in session through the weekend to ensure that these nominees are confirmed.  He said on the Senate floor earlier today:

This week, the Senate will consider another slate of extremely well-qualified nominees for seats on the federal bench. A thoughtful, independent, and expert judiciary is a cornerstone of our constitutional order. It’s been the case since the very beginning. 

Accordingly, the six circuit court nominees we’ll now consider have excellent reputations in the legal field, and have demonstrated they understand the proper role of federal judges in our government. First up is Kurt Engelhardt of Louisiana, the president’s choice to serve on the Fifth Circuit Court of Appeals.

On Wednesday, the Senate Judiciary Committee will hold a hearing on Ryan Bounds (Ninth Circuit), J. Campbell Barker (Eastern District of Texas), Susan Brnovich (District of Arizona), Chad F. Kenney (Eastern District of Pennsylvania), Jeremy D. Kernodle (Eastern District of Texas), and Maureen K. Ohlhausen (Court of Federal Claims).  On Thursday, the Committee will meet to vote on the nominations of Mark Bennett (Ninth Circuit), Andrew Oldham (Fifth Circuit), and eight district court nominees.  

The Democrats and liberal activist groups have been busy smearing Ryan Bounds for months.  They have been complaining about his nomination moving forward after Oregon's two extremely liberal, Democratic senators returned negative blue slips for him.  Ed Whelan explained why this is sadly ironic:

Democratic senators Ron Wyden and Jeff Merkley, along with Republican House member Greg Walden, formed a selection committee to rank candidates for federal judicial vacancies in Oregon. According to this February 2018 letter from Wyden and Merkley to White House counsel Don McGahn, the selection committee “consisted of eight highly experienced and diverse Oregon attorneys” who “carefully reviewed the applications of all the judicial candidates” and interviewed the finalists. Bounds emerged from this process as one of the selection committee’s “four highest ranked candidates” (“listed in alphabetical order”) for the very position to which Trump nominated him. 

You’d think that the fact that the Wyden-Merkley selection committee ranked Bounds as one of the very top candidates would stand him in good stead with them. But Wyden and Merkley have not only declined to support his nomination and even returned negative blue slips on his nomination. . . .

Democratic Senator Mazie Hirono of Hawaii attempted, yet again, to distort the history on blue slips, but the Senate Judiciary Committee majority and RNLA member Ilya Shapiro corrected the misrepresentations in this Twitter thread.

Follow the RNLA on Twitter for updates on the latest judicial nomination and confirmation news.

Judicial Confirmation Expert Carrie Severino to Speak at National Policy Conference

We are pleased to have Carrie Severino speak on one of our breakout panels on "Restoring the Rule of Law to the Judiciary" at RNLA’s National Policy Conference.  Carrie is one of the leading experts on the judicial confirmation process and the qualifications of federal judicial nominees.  Carrie has been in this role for years through both Republican and Democrat control of the White House and Senate.  A few of her recent views.

On Chairman Grassley’s leadership on the “blue slip” process.  

Senator Grassley's policy is completely consistent with the 100-year history of the blue slip. This CRS report gives lots of historical detail: https://t.co/OV5EmXIED0

— Carrie Severino (@JCNSeverino) February 16, 2018

Severino is a former clerk to Justice Clarence Thomas.  Unfortunately, part of her job is defending Justice Thomas from the periodic groundless attacks such as a cover story in New Yorker Magazine a few months ago.   

A boring rerun of discredited allegations from the 1990s, resurrected by a discredited journalist who was fired for lying and mistreating her own employees. https://t.co/msol7WsiK0

— Carrie Severino (@JCNSeverino) February 19, 2018

But Severino's expertise is not just limited to countering groundless Democrats' attacks or obstruction, she also provides insightful commentary on nominees.  A recent sample after President Trump nominated Britt Grant, a justice on the Georgia Supreme Court, and Patrick Wyrick, an associate justice on the Oklahoma Supreme Court.

Severino said the country would benefit from having more state justices serve on the federal bench. State supreme court justices often have the privilege of settling judicial matters whereas federal judges know that the buck does not stop on sensitive or controversial cases until the federal Supreme Court.

The process of nominating and confirming judicial nominees is needlessly complicated by often imagined or misinterpreted Senate procedures such as the blue slip.  Severino does a masterful job of cutting through the chatter and instead focusing on the abilities of the nominees.  

Chairman Chuck Grassley: "Trailblazing Judges Confirmed Despite Delay Tactics"

In Law360 yesterday, Senate Judiciary Committee Chairman Chuck Grassley noted the vital importance of judicial nominees who are committed to the rule of law:

Nominating federal judges is one of the president’s most important constitutional duties, because these life-tenured judges often serve for decades on the bench. The most lasting legacy a president leaves on the American legal landscape is the judges committed to the Constitution and the rule of law. 

President Trump's excellent nominees have been confirmed due to his and Majority Leader McConnell's leadership:

The Senate also confirmed 12 judges to the courts of appeals in 2017, a record for the first year of any presidency and four times the number of appellate judges confirmed in the first year of President Obama’s presidency. These judges, all distinguished by stellar legal and academic credentials, enjoyed widespread support in the legal community. The courts of appeals are the courts of last resort for the vast majority of thousands of cases in our federal court system. It has been among my highest priorities, and Senate Majority Leader Mitch McConnell’s, to confirm these extremely well-qualified nominees.

After noting that President Trump's nominees have included many "trailblazers" including the first Indian-American federal judge (when previously confirmed to the district court) Amul Thapar and four confirmed female appellate judges, Chairman Grassley described how this success in confirmation has been hard-won against the Democrats' stubborn obstruction:

It has been especially remarkable that we have been able to confirm so many judges in light of unprecedented obstruction from Senate Democrats. As of the end of February, the Democrats have required the Senate to hold cloture votes to end debate for 28 of Trump’s judicial nominees. They have required this time-consuming process even for nominees with widespread support who are ultimately confirmed by substantial majorities. In contrast, Senate Republicans forced a cloture vote for only one judicial nominee at the same point in President Obama’s presidency. Moreover, the Democrats are insisting on multiple hours of debate on each nominee even when only a fraction of that time is actually used for debate. This has resulted in a bottleneck of as many as 33 committee-approved judicial nominees awaiting votes by the full Senate at a given time. 

This procedural block is not the only way Senate Democrats have attempted to thwart the confirmation of judicial nominees. Despite the fact that President Trump has nominated individuals with broad bipartisan support from their home states, only two of his circuit court nominees confirmed in 2017 received the support of more than 60 senators. The Democrats’ unprecedented lockstep opposition to nearly all of President Trump’s nominees demonstrates the hold that liberal special-interest groups have over the party. 

Chairman Grassley also explained how, contrary to historical precedent, the Democrats are attempting to turn the blue slip courtesy, which encourages the White House to consult home-state senators on nominees, into a one-senator veto.  Thank you, Chairman Grassley and Leader McConnell, for prioritizing these excellent judicial nominees and not allowing Democrats to use the judicial confirmation process as a way to resist President Trump.

The Senate Blue Slip Saga Continues

Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.

We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.

Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned  blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.

Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:

The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).

Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:

Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.

Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:

I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .

In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:

I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.

When asked about this comment, Ranking Member Feinstein's office did not comment further.

Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.

Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees. 

David Stras Confirmed to 8th Circuit with Votes of 7 Democrats

This afternoon, the Senate confirmed Minnesota Supreme Court Justice David Stras to serve on the Eighth Circuit.  David Stras had been the target of a politically motivated refusal to return a blue slip by former Senator Al Franken of Minnesota, who complained that he was too conservative.  Franken's fellow Democratic Senator from Minnesota, Amy Klobuchar, returned her blue slip.   Despite Sen. Franken's protest, Chairman Chuck Grassley went ahead with a hearing for David Stras, noting that he will not allow senators to use the blue slip as a veto for circuit court nominees.   

Tellingly, seven Democrats voted to confirm Justice Stras, demonstrating that all the heated rhetoric from Democrats about the sanctity of the blue slip has been just that - rhetoric:

#Senate CONFIRMED the nomination of David Stras to be U.S. Circuit Judge for the 8th Circuit by a vote of 56-42.

Senator Capito and McCain did not vote.

7 Democrats voted yes:
Donnelly
Heitkamp
Jones
Klobuchar
Manchin
McCaskill
Warner

— Senate Press Gallery (@SenatePress) January 30, 2018

Seven is a large number of Democratic votes for any Trump Circuit Court nominee to receive, as the Democrats have been fairly united in opposing Trump's judicial nominees.  It's also worth noting that four of them, Sens. Donnelly, Heitkamp, Manchin, and McCaskill, are up for re-election this year in states that President Trump won in 2018.  We may see more carefully chosen votes in favor of the President's nominees in the coming months.  

But that they chose to vote to confirm David Stras, when they had an easy excuse to vote no in the withheld blue slip, demonstrates the excellence of Justice Stras as a nominee.  We can only hope that it also indicates some weakening of the Democrats' mindless obstruction of President Trump's nominees as the 2018 election nears.

Chairman Grassley Has Not Done Away with Blue Slips, But Won't Let Democrats Play Politics with Judicial Nominations

During today's Senate Judiciary Committee hearing for Michael Brennan, nominated for the Seventh Circuit Court of Appeals, the Democrats objected to Chairman Grassley holding a hearing for Judge Brennan even though Senator Tammy Baldwin of Wisconsin did not return her blue slip.  There were even protesters in the gallery in blue shirts (part of an ongoing protest by the Center for American Progress and People for the American Way) and predictable gender-baiting by Democrats simply because Sen. Baldwin happens to be female.  

But as Chairman Grassley pointed out in his opening statement, the consultation purpose of the blue slip has been fulfilled:

As I’ve explained, a negative or unreturned blue slip won’t necessarily prevent a Circuit Court nominee from receiving a hearing, unless the White House failed to consult with home-state senators before choosing the nominee.  

After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested.  

Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.  

I’ll also note that [Republican] Senator Johnson returned his blue slip for President Obama’s most recent nominee for this seat last Congress, even though the commission had also failed to act in accordance with its charter in that situation. I held a hearing for this nominee, and he was voted out of the Committee. 

The Wisconsin judicial nominating commission is composed of six members, three from each party, and the support of five members is required for a judicial candidate to receive the commission's approval.  Sen. Baldwin's reliance on the "dysfunctional" commission's approval in this case is inconsistent with her actions on this vacancy while President Obama was in office.  Then, Sen. Baldwin submitted all eight potential nominees the commission had evaluated to President Obama for consideration.  Only two of those nominees had received the supposedly “required” five votes.  Apparently for Sen. Baldwin, the commission's approval is only important when there is a Republican in the White House.  As Chairman Grassley pointed out, Judge Brennan was the only candidate reviewed by the commission since President Trump took office who received any bipartisan support.

As Chairman Grassley responded to Senator Sheldon Whitehouse complaining about his doing away with the blue slip policy, he is not doing away with blue slips (starting at 1:53:36).  The role of blue slips is the prerogative of the Senate Judiciary Committee Chair, and he is keeping them as a way of ensuring consultation with home state senators by the White House.  However, he pointed out that there will be exceptions, such as when the nominee is for a circuit court vacancy, the White House consulted with the home state senators, and a senator has stated politically motivated reasons for not returning the blue slip.  Chairman Grassley is not going to allow Democratic senators, determined to cater to their radically liberal base and resist President Trump at every turn, to usurp President Trump's constitutional role of selecting federal judicial nominees. 

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .

Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.

But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.

The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.

Yet Another Reason Why Senator Franken Should Resign

Predictably, CNN has an article promoting the Democrats' point of view on blue slips, including quotes from an outraged Senator Franken.

Chairman Grassley continues to exhibit leadership by maintaining the proper respect for bipartisan Senate traditions such as the blue slip while standing up to the unprecedented Democrat obstruction:

First, I’ve said repeatedly that I’m maintaining the blue slip courtesy. I’m keeping the policy that the vast majority of my predecessors had. A negative or unreturned blue slip will not necessarily prevent a hearing unless the White House failed to consult with home-state senators. This policy comes directly from a long line of practice including Chairman Joe Biden’s letter to President George H.W. Bush in 1989.

Second, he went directly after some of Senator Franken’s criticisms which ignored the balance on blue slips that Chairman Grassley is striking for circuit judges, who cover many states, and district judges, who cover one:

It’s worth mentioning that my Des Moines Register op-ed—which Senator Franken brought up yesterday—concerned two district court nominees. Nothing in the editorial suggests I planned to strictly require two positive blue slips from home-state senators for circuit court nominees.

In a fight between Chairman Grassley and Senator Franken, Senate Majority Leader Mitch McConnell states that Chairman Grassley, not Senator Franken, is on the side of the angels over the 8th Circuit nominee Justice David Stras:

In this case, the junior Senator from Minnesota acknowledges that it is ‘undeniably true’ that Justice Stras is a ‘committed public servant whose tenure as a professor at the University of Minnesota underscores just how much he cares about the law.’ Yet our colleague objects to the committee even considering his nomination.

Why does he want to block a widely respected and accomplished state Supreme Court justice from his own state whom his constituents support?  Because our colleague doesn’t agree with the United States Supreme Court Justices whom the nominee admires, one of whom the nominee happened to clerk for. I applaud Chairman Grassley for not allowing the blue slip courtesy to be abused in this fashion, and I look forward to learning more about Justice Stras’s views from today’s hearing

We join with Leader McConnell in thanking Chairman Grassley for his leadership on the blue slip and confirmation processes.  Senator Franken's actions are yet another reason that he should seriously consider resigning from the Senate.  

People Are Missing the Senate's Huge and Important Success on Judges

There is a lot of criticism of Senate leadership and most of it is highly debatable and arguably undeserved.  What is not debatable is that Senate leadership has done a great job confirming President Trump’s judicial nominees.  We detailed Senate Judiciary Chairman Chuck Grassley’s efforts to end the abuse of the blue slip process.  As CNBC noted in an important article over the Thanksgiving break entitled "Congress has handed Trump a historic presidential victory":

Grassley correctly noted that Democrats were now trying to use the blue slips tradition to replace the filibuster, and he's having none of that. As recently as last month, the Democrats and much of the news media's punditry were expecting Grassley, who is no fan of the president, to keep the blue slip tradition in place. But Grassley gave Trump this very special gift instead.

Not only has Grassley delivered in the Judiciary Committee but Senate Majority Leader Mitch McConnell and others have on the Senate floor:

Consider that as of November 3rd, 13 Trump nominees to the courts have been confirmed this year. The big name is Supreme Court Associate Justice Neil Gorsuch, but we also have eight new federal appeals court judges, and four new U.S. district court judges. President Trump has now already surpassed the last four presidents' records for first-year judicial confirmations. And he's even tied President Ronald Reagan number of appeals court confirmations in year one.

It must be noted that this was all set in motion by the most partisan of Senate leaders, Democrat Harry Reid:

And that brings us to the Democrat who provided the initial generous source of President Trump's solid triumph: Former Senate Majority Leader, and Democrat, Harry Reid. Reid is a major reason this good fortune has befallen President Trump because Reid was the one who killed the filibuster rule for judicial nominees in 2013. And when he killed it, it was gone for good.

Critics of the Senate and President Trump can’t say this is some Republican abuse of power; it is merely building on what Reid did.  Smart political operatives are now starting to realizing the impact and long-term importance of the focus on judicial nominations of Chairman Grassley, Leader McConnell, and President Trump:

But real history is being made in the courts all thanks to a bad bet made by Senator Reid and remarkable cooperation between the Trump team, Senator Grassley, and Republican Senate Majority Leader Mitch McConnell. While the fights with other senators like Flake et al may grab headlines, these judicial confirmations will have a much bigger impact.

Chairman Grassley: President Trump's Judicial Nominees Entitled to a Fair Shake, too

Chairman Chuck Grassley of the Senate Judiciary Committee has been discussing his blue slip process over the last couple days. He penned an opinion article yesterday in The Hill. In the article, Chairman Grassley discussed the origin of the blue slips and the real history of their use:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor. . . That blue sheet of paper [the “blue slip”] was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. . .

Chairman Grassley went on to explain why this controversy has only recently arisen and is the fallout from the so-called "nuclear option" being invoked by then-Senate Majority Leader Harry Reid in 2013.

Fast forward to today. Some of my Democratic colleagues are attempting to rewrite history, falsely claiming that the blue slip courtesy is meant to give a single home-state senator veto power over the president’s judicial nominations . . . Democratic senators’ recent calls for a historical interpretation of the blue slip courtesy stem from a decision they made in 2013 to end the 60-vote filibuster for lower court nominees. This move, often referred to as the “nuclear option,” effectively silenced half of the Senate during confirmation votes. At the time, many Democratic senators argued it was unfair for a minority of senators to block nominees with majority support . . . But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. . .

Republicans never abused this process in the same way under President Obama or any other Democratic president. In fact, what Democrats are doing is unprecedented obstructionism, which sadly has been effective so far:

As the minority continues its campaign to block President Trump’s nominees, some are looking to the blue slip as a way to halt judicial nominees before they are even considered in committee. To justify this move, they argue that few nominees have been confirmed since 1979 without support from both home state senators. But this talking point ignores the fact that nominees without two positive blue slips were often filibustered on the Senate floor after a committee hearing.

[A]ny suggestion that Republicans abused the blue slip under President Obama is simply untrue. . . Republican senators did not block any circuit court nominees during the first two years of the Obama administration via the blue slip. Meanwhile, Democrats have already attempted to block three of President Trump’s circuit court nominees by not returning blue slips. . . President Obama’s judicial nominees received a fair shake by the Senate. President Trump’s nominees are entitled to the same.

Today, Chairman Grassley made some more news regarding blue slips. Politico is reporting the Senate Judiciary Committee will schedule hearings for two of President Trump's judicial nominees. Chairman Grassley clarified his move by stating, “I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators... But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.”

The RNLA applauds Chairman Grassley for his leadership and his efforts to get President Trump's well-qualified judicial nominees through the confirmation process.

Various Factors Affect Schedule for Judicial Nominees in Senate

President Trump's White House continues sending excellent judicial nominees to the Senate for consideration.  While everyone wants his or her favorite nominee to be the first considered, Roll Call laid out the practical factors that will affect the schedule in the Senate.  

First, the sheer number of vacancies and pending nominations.  Second, the Republican response to Democrats' abuse of the blue slip process:

“My view is that a blue slip on a circuit judge is simply a notification of how you’re going to vote. To conclude otherwise would’ve left us in the following position at the beginning of this Senate: 48 Democratic senators would’ve been able to blackball 62 percent of the circuit judge nominees. That’s simply not a tenable place to land in a Senate that now deals with judges on the — with a simple majority,” [Senate Majority Leader Mitch McConnell] said. . . . In May, [Senate Judiciary Committee Chairman Chuck] Grassley indicated he could give more deference to Democrats on district court judges than circuit court nominees. 

Third, Democrats' efforts to delay President Trump's nominees whenever possible:

Despite the nuclear changes, Republicans fume that their Democratic colleagues are obstructing Trump’s agenda by slow-walking confirmations. . . . Earlier this month, frustrated with requirements to file cloture motions to cut off debate on many Trump nominations, McConnell said he shouldn’t have to do so on picks that seem to have wide support. . . . 

The procedural change hasn’t allowed the party in charge to move as fast as its conference would like. It can still take multiple days to confirm each nominee under the cloture procedure to limit debate, even with the lower threshold — typically 51 when all 100 senators participate. 

And Democrats continue to use those rules to consider most nominees one at a time. They have not allowed any of Trump’s judicial picks to bypass procedural hurdles in committee or on the floor.

The Democrats' strategy since day one of the Trump Administration has been to attack, delay, and obstruct.  We are grateful for the leadership of Don McGahn in the White House Counsel's office, Leader McConnell in the Senate, and Chairman Grassley on the Senate Judiciary Committee in ensuring that excellent attorneys are nominated for and confirmed to the federal bench.

Democrats Obstruct and Delay Trump's Nominees

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Senate Democrats are obstructing and delaying President Trump's nominees on an unprecedented scale:

Last month, President Trump claimed that the confirmation process for his cabinet had been “record-setting long — and I mean record-setting long — with some of the finest people in our country being delayed and delayed and delayed.”  Trump’s cabinet nominees were pending with the Senate for 25 days, on average, compared to zero to two days, on average, for the last three presidents.  Fourteen of them went through the cloture process, compared to just seven of President Obama’s cabinet nominees during his entire tenure.  Even the Washington Post recognized that Trump has “faced unusually sustained opposition for a new president” and gave his claim a rare Geppetto Checkmark, reserved for claims that are “surprisingly correct.” . . .  

No Democratic senator has returned a blue slip, a Senate tradition allowing senators to give approval for a judicial nominee from their state to move forward, for any of President Trump’s judicial nominees.  Michigan Supreme Court Justice Joan Larsen was nominated to the Sixth Circuit back on May 8.  Michigan voters re-elected Justice Larsen with 57 percent of the vote in 2016, and she is widely respected.  Yet Michigan has two Democrat senators, and her nomination may be delayed so that they can toe the party line laid down by Minority Leader Chuck Schumer. 

Only three of Trump’s nominee’s to the U.S. Department of Justice have been confirmed. . . . Noel Francisco’s nomination to be solicitor general, the number three position in the Justice Department, has been pending since April 24. . . . Most recently, Senator Dianne Feinstein, Ranking Member on the Senate Judiciary Committee, has signaled that Democrats intend to engage in wholesale obstruction of all U.S. Attorney nominees. . . .  

Democrats are traditionally the party of big government, looking to government for solutions to all of life’s problems, big and small.  But what we have learned since President Trump took office is that Democrats only look to the government when they are in control of it.  They are perfectly happy to obstruct government’s operation—and ignore the will of the people as expressed through our system of representative government—when they do not control the levers of power.

Mr. Thielen calls for an end to the delay and attacks tactics and for the American people to tell Democratic senators that they oppose "obstruction of qualified nominees in the Senate."