115th Congress: Significant Events and Issues
When the 115th Congress convened on January 7 after the 2016 elections, Senators returned to a chamber with two more Democrats (Tammy Duckworth from Illinois and Maggie Hassan from New Hampshire) but still controlled by Republicans (52 Republicans, 46 Democrats, and 2 Independents who caucus with the Democrats). A staggering 102 judicial vacancies on the Article III courts awaited their attention.
The event that transformed the landscape with regard to the judicial nomination and confirmation process was, of course, the election of a Republican president. With a united Republican government and the change in the filibuster rules enacted during the 113th Congress (see Historical Note below), Democrats may choose to slow down the process (by demanding cloture votes, for example), but they will be unable to prevent the confirmation of lower court nominees that they find objectionable.
While delays are to be expected at the beginning of a new administration as cabinet positions are filled and vetting teams are assembled, filling the Supreme Court vacancy that arose during the previous Congress on February 13, 2016, as a result of the sudden death of Justice Scalia, trumped any action on lower court nominees during the first three months of the session.
As background, On March 16, 2016, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia, to be Associate Justice of the U.S. Supreme Court. Even though there was widespread respect for Judge Garland among Democrats and Republicans alike, Majority Leader McConnell refused to take any action on the nominee, explaining in a short statement that “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Rather than relenting, Republican organizations prepared a list of potential Supreme Court nominees that Donald Trump endorsed and released in September 2016 while on the campaign trail.
On February 1, 2017, President Trump nominated Judge Neil Gorsuch of the 10th Circuit to be Associate Justice of the Supreme Court. The Senate Judiciary Committee held his confirmation hearing on March 20 and 21 and the ABA Standing Committee on the Federal Judiciary, which had conducted its evaluation of the nominee with the cooperation of the White House, presented testimony on March 21 to explain its “Well-Qualified” rating of Judge Gorsuch.
As expected, there was a show-down over his confirmation. Unable to muster the 60 votes needed to overcome the Democrats’ filibuster, the Senate Majority Leader amended the filibuster rule to make it possible for Gorsuch and future Supreme Court nominees to be confirmed with only 51 votes. Senator McConnell used the same tactic employed by the Democrats in the 113th Congress when they were in the minority to overcome Republican filibusters of lower court nominees. At the time, the idea of extending the “Nuclear Option” to Supreme Court nominees was anathema to both parties, no matter how partisan the process had become.
On April 6, the Senate voted to change the filibuster rule for Supreme Court nominees, and on April 7, by a vote of 54-45, the Senate confirmed Neil Gorsuch to be the 113th Justice of the Supreme Court of the United States.
Lower Court Nominations.
On March 21, President Trump nominated, his first lower court nominee, Amul Thapar, to the Sixth Circuit Court of Appeals. He was confirmed on May 25. Since then, the president has submitted dozens of nominations in waves, with as many as 11 announced at one time. The number of vacancies, which skyrocketed, from 45 to 103 during the 114th Congress, has continued to climb this Congress. With more than 140 vacancies at present, over 15% of 870 authorized Article III judgeships are vacant.
Blue Slip Process Under Siege
The role of the blue slip in the nomination and confirmation process has become an issue of considerable debate this Congress. This process is not spelled out in a Senate rule and is often characterized as an institutionalization of “senatorial courtesy” which can be traced back to the 65th Congress (1917-1918).
After a president nominates an individual for a U.S. circuit or district court judgeship, the chairman of the Senate Judiciary Committee sends a blue-colored form to the senators representing the home state of the nominee. If a home state senator has no objection to a nominee, the blue slip is returned to the chairman with a positive response. If, however, a home-state senator objects to a nominee, the blue slip is either withheld or returned with a negative response.
Since the use of blue slips is not codified or included in the committee’s rules, the chairman of the Judiciary Committee has the discretion to determine the extent to which a home-state senator’s negative or withheld blue slip prevents a president’s judicial nominee from receiving a committee hearing. A condensed summary of the blue slip process that each chair from 1989 to 2015 (Biden, Hatch, Leahy and Specter) followed is available here. (See also CRS report 7-5700.)
While different chairmen have used the blue slip in different ways, during all of the Obama presidency, Senator Leahy insisted that two positive blue slips from the home-state senators were required prior to committee action. This provided the Republican minority with a tool to exert some influence over the president’s selection of nominees, which in turn retained an incentive for the president to continue to engage in the practice of prenomination consultation with the affected senators even after the nuclear option was invoked.
Senator Grassley has come under intense pressure from his party’s leadership to alter or even abandon the blue slip process entirely. However, according to Senator Grassley’s spokesperson, the Senator “will determine how to apply the blue-slip curtesy for federal nominees, as has always been the practice…. Over the years, chairmen have applied the curtesy differently, but the spirit of consultation has always remained.” So far, Senator Grassley has adhered to his predecessor’s policy of requiring two positive blue slips prior to moving forward with a judicial nomination.
Historical Note: Filibuster Rule Change and Reprisal. Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to enable the Democrats to change the Senate’s Standing Rule regarding filibusters by a simple majority vote rather than the 67 votes (i.e., a supermajority vote) that is normally required to change a Standing Rule. As a result of this successful procedural move, the Senate adopted a new filibuster rule that gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans struck back by making Senator Reid file a cloture motion on every nomination brought to the floor, a tactic aimed at tying up valuable floor time. Nonetheless, the filibuster rule change resulted in a flurry of judicial confirmations, which significantly reduced the number of vacancies by the end of the Congress. It also dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress.
Please click here for additional information about the nomination and confirmation process during prior Congresses.