Bench Memos

Law & the Courts

Democrats Are Projecting Their Opposition to Trump on Judicial Nominees

(Carlos Jasso/REUTERS)

With Vice President Mike Pence breaking the tie, the Senate on November 28 voted 51-50 to end debate on the nomination of Thomas Farr to the U.S. District Court for the Eastern District of North Carolina. On the one hand, this was unprecedented: Never before has the Senate needed a tie-breaker to either invoke cloture or confirm a federal judge. On the other hand, it was entirely predictable, given the intransience of Senate Democrats, who persist in taking out their opposition to Donald Trump on his nominees.

The seat to which Farr is nominated has been open since the end of 2005 and has been designated a “judicial emergency” vacancy since July 2007. George W. Bush nominated Farr to this seat in 2007 but Democrats, who controlled the Senate, refused to give him a hearing. Donald Trump nominated Farr to the same position in July 2017.

Farr has practiced law in North Carolina for 35 years. His critics accuse him of complicity in certain “voter suppression” tactics during the 1984 and 1990 re-election campaigns of Senator Jesse Helms, R-N.C. Farr was general counsel for those campaigns.

Such accusations have become all too predictable as well. Incendiary allegations are made against a judicial nominee, who then becomes guilty until proven innocent. That disreputable tactic is no more legitimate against Farr than it was against Justice Brett Kavanaugh. There’s no evidence to contradict Farr’s denial that he had anything to do with those campaign activities, and only found out about them afterward.

That should be enough, but there’s more. Folks may remember the flap earlier this year about the so-called “blue slip” process. That’s the piece of blue paper on which senators indicate support or opposition for someone nominated to a judicial vacancy in their state. Senate Democrats argued that home-state senators’ views should determine whether the process proceeds or stops.

On May 8, 2018, for example, Senator Patrick Leahy, D-Vt., explained that home-state senators “know our states. We know who is qualified to fill lifetime appointments to the bench.” He said the same thing on June 7 and July 18.

Previously, on March 6, 2012, when he chaired the Judiciary Committee, Leahy similarly emphasized “the long tradition of deference on district court nominees to the home state senators.” A week later, Leahy again explained that nominations to the U.S. District Court “have always been considered with deference to the home state senators who know the nominees and their states best.”

That’s a fine sentiment, at least when senators want to block nominees of the other party or promote nominees of their own. But if that’s a legitimate standard, if it’s even a little bit more than partisan politics, then it applies today as well because Farr’s home state senators, Richard Burr and Thom Tillis, strongly support his nomination.

One more thing. Democrats, including Leahy, have repeatedly pronounced American Bar Association ratings to be the “gold standard” for evaluating judicial nominees. The ABA committee awarded Farr its top “well qualified” rating — unanimously. In fact, it’s done so twice, in both 2007 and 2017. The ABA’s rating covers “judicial temperament” which includes a nominee’s “freedom from bias” and “commitment to equal justice under the law.”

No one accuses the ABA of being conservative. Indeed, at least four studies (here, here, here, and here) have found systematic bias against Republican nominees in the ABA’s ratings. So for Farr to have his commitment to equal justice praised so highly by a liberal lawyers’ group, that commitment has to be really strong.

Clearly something other than the merits or qualifications of nominees is driving the opposition nominees. Eighty-three percent of Trump’s appointees to the U.S. Court of Appeals have been rated “well qualified” by the ABA. Yet these same appointees have received an average of 32 votes against confirmation. To put that in context, consider that only 69 percent of Barack Obama’s appellate court judges were rated “well qualified” in his first two years, yet they received, on average, just seven votes against.

Senate Democrats have each voted, on average, against 29 Trump judicial nominees. In fact, more than three in five have opposed a majority of them. Until this Congress, no senator in history had ever voted against more than six judicial nominees during a president’s first two years in office.

There’s no explanation for this radical change except raw partisan politics. Senate Democrats are using Trump’s nominees as proxies for Trump himself; voting against them means voting against him. This is the ultimate politicization of the judicial appointment process.

Thomas Jipping — Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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