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Tennessee Senators Unhappy with Consultation on Judge Pick (1)

Nov. 18, 2021, 2:25 PMUpdated: Nov. 18, 2021, 11:48 PM

Tennessee’s Republican senators say the White House didn’t meaningfully consult with them on President Joe Biden’s nominee to a seat in their state on the U.S. Court of Appeals for the Sixth Circuit.

“It is very disappointing that the Biden Administration, which promised bipartisanship, disregarded the longstanding tradition of substantively consulting with home-state senators on judicial nominees,” Sens. Marsha Blackburn and Bill Hagerty said in a joint statement.

While their backing might be helpful in the evenly divided Senate, Blackburn and Hagerty’s support for the nomination isn’t needed for the circuit nominee to move forward since Republicans changed a Senate norm in 2018. Judicial nominees can advance with a simple majority vote and circuit picks don’t need home-state senator support.

The statement comes after Biden nominated Andre Mathis, a Memphis-based lawyer at Butler Snow LLP, to the Sixth Circuit. Mathis’ nomination marks Biden’s first circuit court pick for a seat in a state with at least one Republican senator.

“We attempted to work in good faith with the White House in identifying qualified candidates for this position, but ultimately, the White House simply informed us of its choice,” the Tennessee senators said.

The White House characterized the discussions with the Tennessee senators differently.

“We were grateful to discuss potential candidates for the Sixth Circuit with both Tennessee Senators’ offices starting several months ago, and are enthusiastic about Andre Mathis’s historic nomination,” White House spokesman Andrew Bates said.

“The White House regularly consults with home state senators on both sides of the aisle regarding vacancies in their state and will continue to do so in good faith,” Bates said.

Of the 10 remaining circuit court vacancies Biden has to fill without a pending nominee, five are in states with at least one Republican senator.

Republican Precedent

The precedent set by Republicans for circuit vacancies will allow that nomination to go forward regardless of whether Blackburn and Hagerty support the nomination.

During the Trump administration, then-Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) elected not to honor the “blue slip” rule for circuit judges. Previously, if a senator didn’t signify support of a nominee by returning a document known as a “blue slip,” that nominee generally wouldn’t advance.

Doing away with the practice made it easier for Trump to fill the appeals courts quickly. And Democrats, who now control the Senate, are playing by the same rules.

Biden’s nomination of Mathis, a corporate law partner, also didn’t thrill progressives, who want to see more professional diversity on the bench. Corporate lawyers and federal prosecutors are historically common professional backgrounds for federal judicial nominees.

Biden so far has prioritized nominating public defenders, civil rights lawyers, and union-side labor lawyers to the circuit courts, said Chris Kang, co-founder and chief counsel of progressive judicial advocacy group Demand Justice. With his Sixth Circuit nomination he went on “a different track.”

“I assume the reason that he’s done this is because he’s trying to—notwithstanding the fact that blue slips don’t matter anymore for circuit court nominees—he’s trying to find a candidate who he believes the Republican home-state senators will support,” Kang said.

Kang, who handled nominations for the Obama administration, said he understood why Biden might be trying to reach consensus on circuit picks in states with a Republican, but hopes the administration won’t have two separate models for circuit nominees in states with Republican senators and states without.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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