Bench Memos

Law & the Courts

Some Observations on This Week’s Judicial Confirmations

On Wednesday and Thursday, the Senate confirmed 13 of President Trump’s district-court nominations. A few quick comments:

1. The Senate has now confirmed 133 of Trump’s district-court nominations. Over President Obama’s first three years, the Senate confirmed 97 of his district-court nominations.

2. A remarkable 80 of the 133 confirmations have occurred since April, when majority leader Mitch McConnell led the successful effort to adopt a rule reducing the (never or rarely used) hours of post-cloture debate on district-court nominees from thirty to two.

3. To reiterate a point I’ve made before: The Senate Judiciary Committee’s blue-slip policy remains in full force on district-court nominations and thus confers an effective veto on home-state senators, irrespective of their political party.

Several of the confirmed nominations illustrate how home-state Democrats have been able to use their blue-slip leverage: Two of the nominees—Robert J. Colville (W.D. Pa.) and Gary Richard Brown (E.D.N.Y.)—had in fact been nominees of President Obama, and a third—Lewis J. Liman—has a very distinguished liberal pedigree. (Colville had 27 Republicans vote against his nomination, and Liman had 29 vote against his.) All three were evidently part of broader deals that the White House struck with home-state senators: Brown and Liman were two of seven district-court nominees from New York announced on the same day, and Colville’s nomination was announced along with another Pennsylvania nominee.

For what it’s worth, I think that reasonable cases can be made both for and against the muscular blue-slip policy on district-court nominations. The policy survives—and, I think, will continue to survive—for a simple reason that wins strong bipartisan support: no senator wants to have his political enemy preside over his corruption trial.


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