Bench Memos

Law & the Courts

Schumer and Casey Eat Their Own

Senate Minority Leader Chuck Schumer, D., N.Y., speaks after a Democratic policy lunch on Capitol Hill in Washington, D.C., January 29, 2019. (Joshua Roberts/Reuters)

On Wednesday the Senate confirmed Judge Joseph Bianco to be President Trump’s 38th judge of the United States Courts of Appeals. Since 2006, Judge Bianco has served as a U.S. District Judge for the Eastern District of New York, where he was confirmed by voice vote and with the support of Senate minority leader Chuck Schumer (D-NY) fourteen years ago. Once so noncontroversial that he did not even require a recorded vote, Judge Bianco somehow managed to become so controversial in the intervening years that he was confirmed this week by a near party-line vote. Controversial on what basis? Because Senator Schumer says so.

Indeed, without citing any evidence whatsoever and ignoring Judge Bianco’s “well-qualified” rating from the American Bar Association, Schumer issued the following statement after Bianco and fellow Second Circuit nominee Michael Park were voted out of the Senate Judiciary Committee along party lines in March:

Another day, another partisan push by Senate Republicans for hard-right nominees to get lifetime appointments on the federal bench . . . Senate Judiciary Committee Republicans voted to advance the nominations of Michael Park and Joseph Bianco for the Second Circuit, despite objections from Senator Gillibrand and me.

The same Chuck Schumer who said in November 2005 while introducing Bianco at his Senate Judiciary Committee hearing that he was a “great, great guy” and that he was “proud to support someone as outstandingly qualified and well respected as Mr. Bianco” apparently changed his mind when President Trump decided to elevate Judge Bianco to the Second Circuit. Just another day in the Senate Democrats’ obstruct-at-all-costs approach to judicial nominations, a resistance effort that has only intensified since Justice Brett Kavanaugh’s confirmation battle.

Judge Bianco’s case proves that Senate Democrats are now more than comfortable openly flaunting their disrespect for the White House’s good-faith consultation process that produced consensus circuit court nominees from states represented by Senate Democrats including Illinois (twice), Michigan, Hawaii, New Mexico, Indiana, North Dakota, and even New York, with the relatively easy confirmation of another former district judge, Richard Sullivan.

What’s more, in addition to Schumer and Senate Democrats’ post-Kavanaugh non-engagement with the White House, we are now seeing a recurring bad-faith trend regarding their treatment of sitting district judges they previously recommended to Republican presidents. District judges who were previously considered non-controversial are now assailed as partisan hacks by the same home-state Senate Democrats who helped them ascend to the bench in the first place. The latest example is current U.S. District Judge Peter Phipps, President Trump’s newest nominee to the Third Circuit announced last week. Just over a year ago, Senator Bob Casey (D-PA) introduced Phipps to the Committee as a jointly recommended nominee to the U.S. District Court for the Western District of Pennsylvania. With the help of Senator Toomey, Senator Casey shepherded him to a voice vote out of Committee and to a unanimous confirmation vote by the full U.S. Senate in October.  In supporting his nomination to the U.S. District Court last April, Senator Casey praised Judge Phipps’s “academic record . . . experience . . . temperament . . . character, and of course . . . commitment to the rule of law. I think Peter Phipps does well on all of those criteria.”

What a difference a few months make. To most everyone’s surprise, within hours of Phipps’s nomination, Senator Casey took a page right out of the Schumer playbook and announced that he would oppose Phipps because he has “significant concerns about Judge Phipps’s judicial and constitutional philosophy.”  Since when?

After law school, Judge Phipps clerked for a judge nominated by President Bill Clinton. He spent the majority of his professional life as a career trial attorney in the U.S. Department of Justice. In the seven months Phipps has served as a district judge, he has not issued any decisions on hot-button issues.

Perhaps lack of judicial experience is the issue given that Senator Casey also stated that he does not believe “six months on [the district court] bench is sufficient experience or preparation to sit on the Circuit Court of Appeals.” Of course, the fact that Cheryl Krause, President Obama’s first Pennsylvania nominee to the same court, had no judicial experience whatsoever did not stop Senator Casey from returning her blue slip and voting to support her confirmation five years ago. Thus, history teaches that Senator Casey has not required judicial experience to support a Pennsylvania nominee to the Third Circuit—at least not when the President was of his political party.

Senator Casey’s only real objection to Judge Phipps is that President Trump has nominated him to the court of appeals. While some Senate Democrats negotiated with the White House in good faith on circuit court nominees earlier in the administration, those days are clearly over.  Currently there are only two circuit court vacancies without named nominees, although more vacancies are expected to arise before the 2020 election. The White House—and those who care about President Trump’s efforts to reshape the judiciary — should anticipate more gamesmanship from Senate Democrats. The Constitution grants the president alone the power to nominate judges, and as all but two past Senate Judiciary Committee chairmen have recognized, the blue slip was never intended to be a weapon to block nominees on ideological or political grounds. No one should be fooled by continued bad-faith efforts by Senate Democrats to avoid White House consultation under the guise of months-long screening processes or other procedural delays that are designed to run out the clock until 2020.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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