Senator Michael Bennet of Colorado is the latest candidate to enter the crowded Democratic presidential primary race. Yet he is already facing heavy criticism for his Senate record, not on climate change, health care, or immigration, but rather for his votes to confirm 32 of the 100 confirmed judicial nominees of President Trump.
Among the critics is Demand Justice, a new advocacy group that aims to push back against the judicial nominees of Trump. It ran a recent digital ad that asked, “Which Senate Democrats make the grade when it comes to fighting Trump’s plan to pack the courts?” The ad gives Senators Elizabeth Warren, Cory Booker, and Bernie Sanders high marks but gives Bennet and Senator Amy Klobuchar failing grades.
The ad concludes by warning Democratic senators to “stop siding with Trump.” The grades are from a Demand Justice report card, which scrutinizes the votes of Democratic senators during the 115th Congress. High grades were reserved for senators who showed “willingness to fight” judicial nominees by Trump. Lower grades were given to Democrats who did not “fight hard enough.” The report card argues that Democrats should reject each judicial nominee. It also encourages senators to not return blue slips for judicial nominees from their home states.
Although this approach may be considered a justified response to the failed nomination of Merrick Garland, the controversial hearing for Justice Brett Kavanaugh and recent Senate Republican rule changes, it is nonetheless a futile and shortsighted strategy. A wholesale rejection of each judicial nominee will not stop the current pace of nominations, but it will hasten the tit-for-tat political escalation of judicial confirmation battles — which does nothing to protect the institution advocates claim to want to save.
Beginning with the obvious, Senate Democrats do not have the numbers to fully stop judicial nominations. Due to the “nuclear option” implemented by both former Senate Majority Leader Harry Reid and current Majority Leader Mitch McConnell only a simple majority is necessary to confirm judicial nominees.
More troublingly, a casual rejection of each judicial nominee could summon the end of the blue slip policy. This policy is an uncodified Senate tradition with over 100 years of Senate history. But because it is a tradition rather than a rule, the blue slip policy’s reach has evolved over the years. Currently, a district court nomination will not proceed unless home-state senators return a favorable blue slip. (Circuit court nominations, on the other hand, do not currently require a returned blue slip.)
Since most judicial vacancies lie in the lower district courts, it is possible for Democratic senators to temporarily stall most of Trump’s judicial nominations. To stop the delay, current Judiciary Committee Chair Lindsey Graham could simply change the blue slip policy. Democrats may cry foul, but there would likely be enough political support to make the change. After all, unlike many appellate nominations, district court nominees tend to be uncontroversial selections with bipartisan appeal. An arbitrary rejection of each of these selections would offer Senate Republicans political cover to permanently end the blue slip policy, meaning a 100-year senatorial norm would disappear forever.
Outside of Washington, a wholesale rejection of judicial nominees also causes real-world harm. Currently, there are over 120 vacancies in district courts nationwide. Dozens of these courts are facing “judicial emergencies” due to overwhelming caseloads. Blocking these nominations to score political points disproportionately hurts the poor and most vulnerable from efficiently and affordably resolving legal disputes. It is therefore vital that these courts be staffed as quickly as possible.
During Justice Neil Gorsuch’s 2017 confirmation hearing, Sen. Bennet observed that “it is tempting to deny Judge Gorsuch a fair hearing because of the Senate’s prior failure.” He concluded, though, that “two wrongs never make a right,” and that “[t]he Supreme Court is too important for us not to find a way to end our destructive gridlock and bitter partisanship.” Time will tell if Sen. Bennet’s optimism can overcome Republican’s and Democrats’ eagerness for the courts to become the next institution to suffer from rampant politicization.
Image credit: Katherine Welles