As Chairman Grassley of the Senate Judiciary Committee tries to fill every chopper out of Saigon with judicial nominees, news came this morning that the two nominees for Oklahoma were held over. What gives?
It seems that the caretaker senator from Oklahoma, Alan Armstrong, may have it in for one of the nominees, Zach West. West is, as I have explained, a superlative choice for an otherwise lackluster Oklahoma federal court system. He is strongly supported by Governor Kevin Stitt and by his old boss, Senator Ted Cruz. Rumor has it, though, that he is not supported by Oklahoma’s outgoing attorney general and failed gubernatorial candidate, who perhaps had a favorite in mind for the seat. Recall that the outgoing attorney general is most famous for preventing the establishment of a Catholic charter school in Oklahoma, sending his solicitor general all the way to the Supreme Court in order to back Oklahoma’s vestigially bigoted Blaine Amendment. (West, on the other hand, signed the previous attorney general opinion allowing for the Catholic charter school.)
Armstrong, to be sure, does not see himself as a mere caretaker. A former energy CEO, he has struggled mightily to cast himself as the face of the impending bipartisan permitting reform bill negotiated by its chairmen, Shelly Moore Capito and Mike Lee. In order to see their project through, Armstrong has fought to remain in his appointed seat through the rest of the current Congress. His successor, Representative Kevin Hern, has instead argued that he should be seated immediately following the elections. This was a question left to none other than the same Oklahoma attorney general who opposed West to resolve. Seen in that context, it’s understandable why Armstrong would want to be seen doing the attorney general’s bidding on this district court. Each one needed something from the other. Of course, it was for naught, because the attorney general ruled in favor of Hern, who will be sworn in upon certification on November 30.
So why the continued hostility? It’s hard to say. The White House already agreed to swap seats between West and the other nominee, Trevor Pemberton. Pemberton will now have the more “prestigious” seat in Tulsa while West will be an Okie from Muskogee. That, apparently, was a demand from Armstrong before their hearing, which the White House accommodated.
What’s most baffling is that Armstrong had his chance to block West at the time by refusing to return a blue slip. He didn’t. He returned a blue slip for West, who had a hearing where he performed admirably. Armstrong may be a footnote senator, but surely someone explained the rules to him: You block nominees in your state with the blue slip. In ten years I can’t recall another instance of a home-state senator agreeing to a nominee and then trying to scuttle him after his hearing.
A little-understood aspect of a real senator’s personality is a desire to be consistent or to save face. In the first Trump administration, for example, once-and-future senator Sherrod Brown agreed to support Matt McFarland for the Southern District of Ohio. Prior to McFarland’s hearing, liberal groups dug up dirt on his supposed involvement in a pro-life group and his attendance at partisan Republican events as a federal judicial nominee. (While unusual, McFarland, as elected judge in Ohio, had to contend with future Republican primaries should his nomination have failed.) As a result, McFarland met with Brown’s staff for an hour in Columbus to answer their questions, after which Brown returned his blue slip. McFarland was reported out of committee on a party-line vote and was later confirmed with only four Democrats voting for him. One of those Democrats was Brown. It would have been the easiest thing in the world for Brown to have turned on McFarland, but he didn’t. Brown wasn’t scurrying around behind the scenes trying to get others to do his dirty work, either. He returned a blue slip and that was that. Real senators stand by their decisions, keep their word, and save face.
Armstrong’s time may be short but he should follow Sherrod Brown’s example. He returned a blue slip; he should own that decision and back West. Who knows if his hostility to West was part of an attempted “drug deal” (as we used to call such agreements) with the attorney general regarding when Hern would be seated. After all, if it was, it failed. But the unity of personal political interests at the expense of sound policy makes the whole situation stink, regardless, and no self-respecting Republican should want to be caught within three zip codes of it.
There’s another lesson here for a temporary senator to internalize: Don’t jerk around a committee chairman. Chairman Grassley has been working tirelessly to fill these seats as befits a man whose campaign motto is “Grassley works.” He simply doesn’t have time for petty games from members (or from the White House). If Armstrong’s blue slip for West isn’t worth the paper it’s printed on, why should it be for Pemberton? Perhaps Oklahoma simply isn’t worth the trouble with its backbiting caretaker senator. Better, then, to let Chairman Sheldon Whitehouse sort out the Oklahoma drama; Grassley doesn’t have time for it.
Senate Republicans should not prefer this outcome. They should listen to Oklahoma’s senior senator (no Trump lickspittle, he), support both West and Pemberton, and impress upon their temporary colleague and his co-conspirators the need to do the same. Otherwise, Armstrong (and the outgoing attorney general) can explain to the people of Oklahoma why their petty grievances kept their state’s judgeships vacant.