Top Democratic senators are facing criticism from the left for using screening commissions to vet judicial picks, in what could be the latest casualty of the partisan judicial confirmation wars.
Thirty-seven of the Senate’s 47 Democrats rely on judicial screening commissions, according to a recent study by liberal think tank People’s Policy Project. The commissions have long been a first step in vetting picks that senators forward to the White House.
Senators like Richard Durbin (D-Ill.) and Sherrod Brown (D-Ohio) touted their committees at recent confirmation hearings for judicial nominees from their states.
Liberal groups, including Demand Justice and Alliance for Justice, say those committees are filled with corporate lawyers who back like-minded selections who don’t always advance diverse picks.
Their opposition jeopardizes a staple of the nominations process built on bipartisan negotiation. They’re urging Democrat Joe Biden, a former Senate Judiciary Committee chairman, to reject them, if elected president.
“I just see it as the next step in this process becoming increasingly politicized,” said Richard Davis, a political science professor at Brigham Young University who follows judicial nominations.
The committees themselves might not have much to do with why senators in the minority party are able to get nominees they support in the first place, judicial nominations experts told Bloomberg Law. Factors like seniority and willingness to work across the aisle are equally, if not more, important.
Committees in Action
At a June hearing, Durbin praised the “three to one” system in his state that allows the president’s party to pick three of four nominees and the minority party to pick one. In order to do that, the senators make use of screening commissions.
“Under our system, Democrats and Republicans are required to work together. Neither side gets everything they want,” Durbin said at the June 24 hearing.
Similarly, Brown touted the bipartisan commission he and Rob Portman (R-Ohio) use when voicing his support for three nominees to Ohio federal courts at a July 29 hearing. Brown said he “purposefully selected commissioners of different races, genders, and practice areas that reflect the diversity of our state.”
The commissions, which date to the 1970s, are often in states with a history of bipartisanship or among minority party senators who think it gives them a better chance at getting more preferred nominees on the bench, said Sarah Binder, a Brookings Institution researcher who has studied judicial nominations commissions.
The president has no obligation to nominate any of the recommendations.
Philip “Flip” Harnett Corboy, a partner at Corboy Demetrio and former a member of Durbin’s committee, said the process helps produce the highest quality candidates possible.
“It was a wonderful experience knowing that the federal bench was going to get the best of the best,” said Corboy. He characterized the vetting process as a collaborative effort among a diverse set of lawyers.
Christopher Kang, chief counsel of Demand Justice and a former Obama administration official who oversaw judicial nominations, said the selection committees “can be as stifling as they can be beneficial.”
During the Obama administration, Kang said there wasn’t a correlation between the quality of picks and whether a senator had a screening committee, and the groups ultimately slowed the process down.
“As much as people would complain that President Obama was too slow to nominate judges, they ignored the fact that more often than not we were waiting for Democratic senators to make recommendations,” Kang said. “Democratic senators had devolved their responsibilities to their committees.”
Kang and Demand Justice Executive Director Brian Fallon, in a July 30 article, urged Biden to pressure senators to stop using the committees if elected and ignore recommendations of senators who move slowly on recommendations.
At a minimum, Nan Aron, the founder and president of Alliance for Justice, said senators need to make professional and demographic diversity a priority when selecting commission members, who should do more to identify diverse judicial nominees like women and people of color.
“It’s high time for these commissions to prioritize the appointment of judges with a demonstrated commitment to equal justice,” Aron said.
Two recent Illinois trial court picks, Stephen McGlynn and David Dugan, attracted opposition from liberal groups, like The Leadership Conference on Civil and Human Rights, over concerns including abortion access.
In a July 23 report, the People’s Policy Project also urged eliminating the committees, saying they should go the way of the “blue slip.” The blue-slip requires a nominee to have support from both home-state senators. Then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) eliminated the custom for appeals court nominees in 2017, though it is still in effect for trial court nominees under current chairman Lindsey Graham (R-S.C.).
Democrats like Durbin might be overstating just how important commissions are relative to their own influence as lawmakers.
“It’s possible with the states and the senators who create commissions in the first place, there’s something conducive to being more open to find more centrist nominees,” said Binder, the Brookings researcher.
The alternative to a screening committee, however, may be less palatable since senators would have to rely more heavily on outside groups or fellow politicians to help make judicial recommendations, which poses its own set of issues, Davis, the professor at BYU, said.
“Having a particular groups, like the Federalist Society, making the decision about who’s going to be a nominee is basically handing it over to someone else who has a particular bias as well,” Davis said.
President Donald Trump has favored Federalist Society members for his conservative judicial appointments, and has worked closely with a now-former society vice president, Leonard Leo, to identify prospective nominees.
“I think all these processes potentially have a bias,” Davis said. “The problem is: Does the senator want to address that bias in the creation of these committees?”