Bench Memos

Law & the Courts

Some Senators Know How to Consult

On Monday, the White House rolled out its eleventh wave of judicial nominees. As Carrie noted earlier this week, the latest slate of nominees continues the Administration’s established practice of selecting highly qualified, conservative nominees for the federal appellate bench. Although there have been a few hiccups, the Trump Administration’s overall record on judicial nominations remains stellar — and much better than some of us anticipated.

One thing that’s particularly interesting about the latest slate of nominees is that it includes three picks for the circuit courts of appeals from states with two Democratic Senators — Mark Bennett from Hawaii for the U.S. Court of Appeals for the Ninth Circuit and Michael Scudder and Judge Amy St. Eve of Illinois for the U.S. Court of Appeals for the Seventh Circuit. Even more interesting is the fact that all three of these nominees have been endorsed by their home-state Senators. Hawaii Senators Hirono and Schatz praised the Bennett pick, and Illinois Senators Durbin and Duckworth praised the Scudder and St. Eve picks. What’s going on?

A cynic might suspect that the Democratic support for Trump’s latest nominees reflects that the Administration has turned away from picking conservative nominees, but that’s not the case. The latest nominees are in line with prior appellate nominees from states with Democratic Senators — including David Stras (Eighth Circuit), Joan Larsen (Sixth Circuit), and Joel Carson (Tenth Circuit), just to name a few. They are highly qualified, able jurists that are hard for home-state Senators to oppose on the merits.

These nominations are also the product of good faith consultation between the White House and Senate offices. Contrary to some suggestions in the press, the White House is not refusing to consult with Democratic Senators on judicial nominations. To the contrary, it is actively seeking good-faith input from home state Senators of both parties.

This is worth keeping in mind when one considers that there remain a significant number of appellate vacancies in states with one or two Democratic Senators, including California, Ohio, and New York, some of which have been designated judicial emergencies. It may also explain why, if nominees for some of the seats are eventually forthcoming, Senator Grassley might ignore the lack of a blue slip from particularly intransigent Senators.

The latest nominations show — perhaps surprisingly — that the White House is willing to consult with Senate Democrats on judicial nominations in good faith. Insofar as some Senators are unwilling to play along, I suspect there is a limit to how long this will be allowed to hold up the process. Eventually the White House will tire of waiting for good-faith consultation that never comes, and I doubt Senator Grassley will allow intransigent Senators to use blue slips to block highly qualified nominees.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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