Trump’s judicial nominees are ignoring key Senate Democrats as they vie for lifetime appointments to the bench — a break from longstanding practice that diminishes the minority’s power to provide a check against ideologically extreme judges.
The brewing tension between the White House and the Senate over filling an unusually high number of judicial vacancies is impeding the pace at which Trump installs lifetime appointees to the federal bench — so far one of the president’s few major victories, with his legislative agenda largely stymied in Congress.
University of Pennsylvania law professor Stephanos Bibas met privately with his state’s GOP senator, Pat Toomey, before Trump chose him to the 3rd U.S. Circuit Court of Appeals in June — but not with Democratic Sen. Bob Casey, according to a questionnaire submitted by Bibas to the Senate Judiciary Committee about his nomination. Same goes for 7th Circuit nominee Amy Coney Barrett, who interviewed with Sen. Todd Young (R-Ind.) about the appellate vacancy but not fellow Indiana Sen. Joe Donnelly, a Democrat.
And in Minnesota, 8th Circuit nominee David Stras met personally with two House Republicans who had recommended him to the White House but with neither of the two senators — Democrats Al Franken and Amy Klobuchar — who actually wield influence over whether Stras’ nomination can advance.
“Let’s be clear: The Trump administration did not meaningfully consult with Sen. Franken prior to Justice Stras’ nomination,” Franken spokesman Michael Dale-Stein said. “Rather than discuss how senators traditionally approached circuit court vacancies or talk about a range of potential candidates, the White House made clear its intention to nominate Justice Stras from the outset.”
Though the nominee questionnaires don’t disclose all communications between the White House and senators about a judicial candidate, Democratic senators and aides argue that consultation over court nominees — generally a bipartisan custom — has been minimal under Trump, at best. That contention is disputed by allies of the Trump administration and other sources familiar with the process.
The fights are largely over process, not a nominee’s merits. But they come at a time when conservatives are pushing Senate Republicans to break with courtesy that gives deference to home-state senators on judicial nominees — a move that would upend yet another longstanding tradition in the chamber.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has signaled he’s prepared to push through circuit court nominees even if their home-state senators don’t return the so-called blue slip — a piece of paper that allows a lawmaker to essentially block a nominee from his or her own state. Ignoring blue slips would give Trump even more power to install conservative nominees to the appeals courts.
The blue slip rule is a century-old tradition, though it has been ignored under previous administrations. So far this year, Grassley has waited for senators to submit the slips before scheduling a hearing.
The Trump administration is well on its way to leaving a lasting conservative imprint on the federal courts. That’s due not only to the vacancies but because Democrats alone can’t block someone from a confirmation vote after the Senate did away with the filibuster for nominations. So far, the White House has 22 pending candidates for the district courts and seven others for the more influential circuit courts.
Because home-state senators still have virtual veto power over judges through the blue slip, that means the bulk of the nominees have so far hailed from states where both senators are Republicans. Nevertheless, people aligned with the administration say there has been more than adequate consultation with Democrats over judges.
“There are some people who are not even returning phone calls from the White House,” said Carrie Severino, chief counsel of the conservative advocacy group Judicial Crisis Network that works closely with the White House. “You can only do so much to confer with people who are being intransigent.”
The Senate has long treasured its role in negotiating judges with the White House, particularly when the senators are of the opposing party from the administration, to produce consensus candidates.
Christopher Kang, a deputy counsel for former President Barack Obama, said it appeared “very unusual” that judicial nominees would so often skip over Democratic home state senators. He cautioned, however, that the questionnaires wouldn’t document all outreach between the White House and senators themselves.
Still, appellate picks from the Obama administration — from Pennsylvania to Utah to Georgia — frequently interviewed with their GOP senators well before being formally nominated, documents show.
The Obama White House even held off nominating a Texas judge, Gregg Costa, to the 5th Circuit Court of Appeals for a year until both of his home-state senators had met with him, Kang said. Costa was confirmed in 2014.
“What we tried to do, to the greatest extent possible, was to consult with the Republican home-state senators,” Kang said. “That’s something that we really wanted to do to make sure that we could get their support.”
The current White House disputed the assertion that there had been insufficient consultation with Democrats.
“The Trump administration is committed to filling all the U.S. attorney and judicial vacancies as quickly as possible,” a White House spokesperson wrote in an email. “We are working with and extensively consulting all senators nationwide in order to complete the nomination process.”
But some Senate Democrats argue otherwise.
Franken had just two conversations with the White House about Stras before the current Minnesota Supreme Court justice was nominated in May, the senator’s spokesman said. Klobuchar said in an interview that she talked with the White House “a number of times” about Stras but only recently met with the nominee. Neither has returned a blue slip, according to a Judiciary Committee spokesman.
When the White House nominated Joan Larsen to the 6th U.S. Circuit Court of Appeals in May, her two home-state senators — Michigan Democratic Sens. Debbie Stabenow and Gary Peters — were given a brief advance notice but not much beyond that, the senators said. Larsen’s own nominee questionnaire says she spoke with White House and Justice Department officials about getting picked for the bench, but lists no communication with her home-state senators.
“They mentioned that they had a nominee, but that was about the extent of it,” Peters said in a recent interview of his interactions with the White House regarding Larsen’s nomination. “There should’ve been more consultation. There’s no question about that.”
Stabenow said while she did speak with the White House about Larsen, “we certainly weren’t asked about offering names.” Peters and Stabenow each returned blue slips to the committee just last Friday after Larsen was nominated in early May. The lag had prompted Severino’s group to shell out $140,000 in early July for ads in Michigan to pressure the two Senate Democrats to back the nominee.
“It’s gonna be important that they [the White House] work with us,” Stabenow said. “The Senate has advice and consent. So hopefully they will do that.”
In Colorado, 10th Circuit nominee Allison Eid spoke with her former law student, Republican Sen. Cory Gardner, about the Denver-based vacancy, but not with fellow Democratic Sen. Michael Bennet, according to her nominee questionnaire. The White House informed Bennet that her nomination was coming, but that was the extent of any discussions, according to the Democrat’s office.
Larsen, Eid and Stras are particularly notable because all three were on Trump’s short list for Supreme Court nominees during his campaign and would be considered candidates for future vacancies. That list produced high court Justice Neil Gorsuch and Amul Thapar, Trump’s first confirmed judge to the lower courts.
Trump’s appellate picks are also highly recommended by the legal community, with Barrett, Larsen, Stras, Eid and Bibas all earning well-qualified ratings from the American Bar Association. They’ve also received support from lawyers and other legal professionals in their home states.
“Most of these people are not unknown,” Severino said. “It shouldn’t be that challenging to assess them.”
One Trump appellate court pick who did reach out to a Democrat was 8th Circuit nominee Ralph Erickson in North Dakota. He spoke with Sen. Heidi Heitkamp’s staff about the vacancy. Heitkamp has returned the blue slip for Erickson, as has Donnelly for Barrett, according to the committee.
“The White House has been consulting home-state senators throughout the judicial selection process,” said another source familiar with the administration’s efforts. “It has been consulting them throughout the vetting process, it has been checking in with them before the nomination and it has been jumping to attention whenever a senator calls seeking an update.”
The person added: “Short of hiring them to come work in the administration, it is difficult to imagine what more the White House can do to include home-state senators in the process.”
But in other cases, Democrats are accusing the Trump administration of blowing past longstanding procedures designed to produce consensus judicial candidates.
The White House announced last week that it was nominating Michael Brennan, a Milwaukee lawyer who once led Wisconsin Gov. Scott Walker’s judiciary advisory committee, to a seat on the 7th U.S. Circuit Court of Appeals that has been vacant since 2010.
Brennan didn’t get the requisite support from a state-based nominating commission for judges, Baldwin’s office said. Getting the commission’s full support requires five votes from the six-member group, and a spokesman for Wisconsin’s other senator, Republican Ron Johnson, said Brennan received four votes.
“President Trump has decided to go it alone and turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges,” Baldwin said. “I am extremely troubled that the president has taken a partisan approach that disrespects our Wisconsin process.”