The United States Law Week

Emboldened Senate GOP Moving Forward on Trump Judicial Nominees (1)

Nov. 7, 2018, 6:37 PMUpdated: Nov. 7, 2018, 9:17 PM

Fresh off midterm Senate gains, emboldened Republicans moved ahead on Wednesday with Trump judicial nominations, which have paid off politically with conservatives and could include another U.S. Supreme Court appointment between now and 2020.

Senate Majority Leader Mitch McConnell said confirming more conservative judges was going to remain a top priority. Judiciary Committee Chairman Chuck Grassley underscored that message by immediately scheduling a hearing on nominees for Nov. 13.

Republicans picked up at least three Senate seats in Tuesday’s midterms, expanding their majority and giving leadership much more room to maneuver on Cabinet nominees and judicial appointments, which both require confirmation by the full chamber.

Moreover, with the House flip to Democrats complicating President Donald Trump’s legislative agenda, the Senate appointments process takes on new importance for his administration and the GOP.

Although leaders are promoting their judicial agenda anew and there’s a hearing set for next week, Senate Republicans are likely to push action on many nominees to next year, Arthur D. Hellman, a professor at the University of Pittsburgh law school who focuses on federal courts, told Bloomberg Law.

Hurry Up and Wait?

Republicans have confirmed Trump’s federal appellate court nominees at record pace. Eleven vacancies and four known future vacancies remain on the courts of appeals.

Though nominees have been a priority for Republicans, the rest of 2018 may be a time for them to turn to other matters, Hellman said.

With Democrats taking control of the House in 2019, Republicans might want to spend the limited floor time available in the “lame-duck” session on getting Republican legislation passed, he said.

McConnell suggested that there would be less legislation to process from the House once Democrats take over.

It might be a waste to use floor time during the very short period Republicans will control the House to do something they “could do just as easily next year,” Hellman said.

But Hellman said once 2019 comes, Republicans could try to accomplish a rarity—filling every single judicial vacancy.

Despite the increase in Republican seats, some progressives are hopeful that there will still be ways to block nominees.

Trump judicial picks Ryan Bounds, Jeff Mateer, Matthew Petersen, and Brett Talley failed despite Republican control, Daniel L. Goldberg of Alliance for Justice, a progressive advocacy group, told Bloomberg Law.

Goldberg is hopeful that Sen. John Kennedy (R-La.), whose basic legal questions were a stumbling block for Petersen, will make clear to McConnell and the White House that “some of these nominees have no business being federal judges,” he said.

Thomas Retirement?

The future might also bring a retirement from U.S. Supreme Court Justice Clarence Thomas now that Republicans are in a stronger position to confirm a replacement, Hellman speculated.

Thomas, 70, has been on the high court for 27 years, and has been the source of some retirement speculation, especially with Republicans in control of the White House and the Senate.

Thomas enjoys life outside the court, including driving a recreational vehicle, and may wish to retire soon, Hellman said.

Thomas would likely want to be replaced by a Republican president, and would therefore be concerned about having to stay on the court for another four years “if a Democrat is elected in 2020,” Hellman said.

Trump has appointed two justices already, Neil M. Gorsuch and Brett Kavanaugh. Replacing Thomas with another conservative would further cement that majority, not expand it.

Republican appointees on the appeals or district courts also might be more likely to retire now for similar reasons, said Gregg T. Nunziata, who served as chief nominations counsel to the Senate Judiciary Committee and is now a partner at Manatt, Phelps & Phillips in Washington.

Norms Nixed?

Grassley has been willing to hold hearings for nominees who haven’t received “blue slip” approvals from their home state senators, which Democrats have described as a violation of Senate norms.

The blue slip tradition encouraged the White House to consult with senators during the nomination process.

Though Grassley hasn’t required blue slips for all nominees, it was still more difficult to confirm nominees who didn’t have home state support, Nunziata, who identifies as a conservative, said.

With a bigger Republican majority, blue slips may carry even less weight, Nunziata said.

Also, Republicans might also decide to change a procedural rule to expedite a confirmation vote following cloture, or Senate approval to end debate.

It’s a “critical question” whether the White House “and the Senate will slow down and provide real consultation with home state senators and real advice and consent in the confirmation process, now that the time pressure is much less to ram nominees through,” Carl W. Tobias, a professor at the University of Richmond School of Law said.

Some progressives are hoping that the next replacement for White House Counsel Don McGahn, who recently left the post, will place greater importance on consulting home state lawmakers.

The counsel “is usually involved in negotiating with home state senators” to come up with agreeable packages of nominees, Kristine Lucius, who served for 14 years as a legal and policy advisor to the Judiciary Committee, said.

Lucius is executive vice president for policy at the Leadership Conference, a progressive advocacy group.

Lucius also noted speculation that Grassley might leave the Judiciary chairmanship to head the Finance Committee.

If Grassley leaves, it’s possible his replacement will have a greater respect for norms when it comes to judicial nominees, Lucius said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com