Bench Memos

Law & the Courts

Last Year in Judicial Appointments

In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2018. Let’s revisit them:

1. “Will a Supreme Court vacancy arise?”

I’m happy to stand by what I wrote:

Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.…

If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.

2. “How expeditiously will Senate Judiciary Committee chairman Chuck Grassley apply his newly clarified blue-slip policy?”

As I wrote back then:

In November [2017], Grassley clarified that he will not treat a negative blue slip as a veto but will instead have the blue-slip process encourage consultation between the White House and home-state senators. If that consultation occurs, Grassley says that he “won’t allow senators to block nominees for political or ideological reasons.”

Grassley added that he was “less likely to proceed on a district court nominee who does not have two positive blue slips from home-senators” than on an appellate nominee. Since “circuit courts cover multiple states,” there is “less reason to defer to the views of a single state’s senator for such nominees.”

Grassley’s practice in 2018 indeed reflected a sharp divide between appellate and district nominees. By my quick count, there were seven appellate nominees without blue-slip approval who had committee hearings, versus zero district nominees. As this letter illustrates, in moving on a nominee who hadn’t obtained blue-slip approval, Grassley documented in detail the extensive consultation between the White House and home-state senators.

3. “Will Senate majority leader Mitch McConnell find a way to break the Democrats’ blockage of floor votes on judicial nominees?”

Alas, the answer to this question is clearly no. At year-end 2017, the Senate’s executive calendar had over 100 nominations—executive and judicial—awaiting a floor vote. At year-end 2018, the total had risen to around 180, including some 30 district-court nominations. About half of those district-court nominations arrived on the Senate floor between January and July of 2018, with the other half all arriving by October 11.

One way to break the blockage would be to reduce the hours of post-cloture debate on district-court nominees from thirty to two. That’s what then-majority leader Harry Reid did, with strong Republican support, in January 2013 for the 113th Congress. (The same resolution reduced the hours of post-cloture debate on most executive-branch nominees from thirty to eight.) Majority leader McConnell can’t count on any Democratic support now, so he would have to use the same simple majority power that Reid used in November 2013 to abolish the filibuster for lower-court and executive-branch nominees.

4. “Will Republicans retain control of the Senate after the November 2018 elections?”

The “yes” answer from November means that President Trump will have at least two more years, on top of his first two, to work to achieve a genuine transformation of the American judiciary.

In a separate post, I will address the big questions that will determine how much progress is made on this front in 2019.

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