The Democrats’ Logic Is Upside-Down on Judicial Confirmations

Six years ago – when journalists were writing that federal judicial vacancies were reaching a “crisis point” — there were 101 empty seats in the district and appellate courts. Today that number is more than 130. The crisis has not abated, but the desire to address it has, at least in some corners. Where once there was urgency, now progressive pundits contend that President Donald Trump is moving at an “unprecedented pace” to fill judicial vacancies.

Despite such concerns, aggressive action to address the lack of a fully functioning judiciary, as envisioned by the Founders in Article III of the Constitution, is good for all Americans. Voters want action on judges, and they want judges who respect the Constitution. The president’s judicial nominees are giving them both.

Progressives seem to be upset that the process is working. The president is selecting highly qualified nominees who respect the rule of law and eschew political agendas, and the Senate is considering them — that’s consistent with the constitutional process. But Senate Democrats have been standing in the way, for overt political reasons. Stressing urgency around the left’s judicial obstruction, one progressive columnist openly wrote, “nothing is more important than taking back the Senate in 2018.”

Who are these “rapid-fire, right-wing” nominees the left is speaking of, anyway? Here is a sampling of them:

David Stras, nominated for the U.S. Court of Appeals for the Eighth Circuit, is an associate justice of the Minnesota Supreme Court and a former clerk for U.S. Supreme Court Justice Clarence Thomas. He served as editor-in-chief of his law review and was teacher of the year at the University of Minnesota Law School. Minnesota Bar Association President Robin Wolpert called Stras a “person who everyone can get behind.”

Stephanos Bibas, nominated to the Third Circuit, is a professor at the University of Pennsylvania Law School, clerked for centrist Supreme Court Justice Anthony M. Kennedy, and served as an assistant U.S. attorney during the Clinton administration.

Joan Larsen is a justice on the Michigan Supreme Court. She graduated first in her class at Northwestern University School of Law and clerked for the late Supreme Court Justice Antonin Scalia. She also taught at the University of Michigan Law School, where 32 of her colleagues wrote a letter supporting her nomination. “Not all of us share Justice Larsen’s views on judicial methodology,” they wrote to Michigan’s two Democratic senators, Debbie Stabenow and Gary Peters. “But every single one of us agrees that she will be an outstanding federal judge, and we are unanimous in urging you to support her nomination.” After stalling for months, Peters and Stabenow finally cleared the way for Larsen last week.

Those bipartisan credentials do not exactly match the fearful rhetoric coming from the left, but Democratic senators have held up all three and likely won’t stop there.

It wasn’t so long ago that the progressive American Constitution Society was praising Obama White House Counsel Robert F. Bauer for being “earnest and urgent” about filling vacancies. For good measure, they also complained about the “unprecedented obstruction of the president’s judicial nominations.”

They were so upset, in fact, that they supported and claimed credit for changing the Senate rules to do away with the filibuster on lower court nominations. Having dispensed with that tool when alacrity suited their purposes, they’re now left with fewer options when obstruction is apparently once again the purest form of patriotism.

Fearing the majority might give Democrats a taste of their own medicine by removing another major roadblock to majority-vote confirmation – the arcane blue-slip process — Senate Democrats are urged to “contest every procedural change the Republicans are making to speed Trump’s nominees.”

Unique to the Senate Judiciary Committee, the century-old blue-slip process allows senators to block judicial, U.S. attorney and U.S. marshal nominees from their home states.

But if the original intent of the senatorial courtesy was benign – to encourage presidents to seek input about judicial nominees – the process has evolved into just another way for outnumbered lawmakers to stifle the will of the Senate. Stabenow and Peters, for example, were blocking Larsen by refusing to return blue slips on her nomination. And their reach extends beyond Michigan. The Sixth Circuit also serves Ohio, Kentucky and Tennessee. No single senator should be permitted to block qualified judges from a court that covers multiple states, especially when there remains a judicial crisis due to the lack of judges.

Both parties have been guilty of this tactic. Republicans did it to President Obama, so Democrats now feel justified in doing it to President Trump. It’s this sort of tit-for-tat that needs to be dispensed with.

It makes no sense to say that 41 senators can no longer stop a judicial nominee, but one senator still can.

People are frustrated with how Washington operates, and this kind of upside-down logic is a large part of the problem. If we want to change the culture, treating the judicial nomination and confirmation process with the constitutional seriousness and respect it deserves would be a good place to start.