Bench Memos

Law & the Courts

Trump’s First Appellate Nominee Confirmed Over Partisan Opposition

Yesterday, the Senate voted to confirm President Trump’s first nominee to a federal appellate court. On a party-line vote of 52-44, the Senate approved Judge Amul Thapar to an open seat on the U.S. Court of Appeals for the Sixth Circuit.

The partisan vote on Thapar’s nomination suggests that there is no point in Senate Republicans (or the White House) attempting to work with or seeking consultation from Senate Democrats on appellate nominations. There is no question about Judge Thapar’s qualifications, and he was actively supported by both of his home state senators. He currently serves as a federal district-court judge and previously worked as a federal prosecutor. He was also the first individual of Sourth Asian descent confirmed to an Article III court, and will now become the first such individual on the U.S. Court of Appeals for the Sixth Circuit.

If Senate Democrats will oppose someone of Judge Thapar’s background and experience, despite strong home-state support, they will oppose any and all Trump nominees. Faced with such partisan, lockstep opposition, there is simply no reason for the administration to seek input or counsel from Senate Democrats, or for the Senate leadership to respect traditional courtesies, such as the “blue slip.” Not surprisingly, the Washington Post reports “blue slip” based obstruction may go away. (For more on the use of the blue slip, here are VC posts from 2013 and 2005 on the blue slip and how it compares to other forms of obstruction.)

It would be one thing if Senate Democrats sought to play hardball and force compromise picks for seats in states with one or two Democratic senators, but that is not what Senate Democrats have opted to do. If they are going to oppose Trump nominees across the board, they cannot complain when Senate Republicans refuse to acquiesce to their obstruction.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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