116th Congress: Significant Events and Issues
The 116th Congress commenced with 133 vacancies to the lower federal courts, 12 of which were for seats on the courts of appeals. During the first month of the new Congress, President Trump renominated 54 of his 69 nominees that were returned at the end of the 115th Congress and two Obama nominees that were returned at the end of the 114th Congress. The Senate Judiciary Committee decided to forego hearings on the renominations and voted in committee on a majority of the renominations during one executive committee meeting. Many of these renominated individuals proceeded to a Senate floor vote in quick succession, with as many as nine scheduled for votes at one time.
The pace at which Majority Leader Mitch McConnell scheduled confirmation votes was in sharp contrast to the extremely slow voting schedule he imposed on judicial nominees during the Obama Administration, especially during his last year in office, when only 22 judges were confirmed. It was in alignment with this Administration’s and his announced intention to fill vacancies expeditiously. Their professed objective was to focus on filling circuit court vacancies first and then to turn to district court nominees. It has worked. At adjournment, only two circuit seats remained vacant.
Total Confirmations during the Trump Administration: 2017-2021 ( 115th and 116th Congress). By the end of the 116th Congress, the Trump administration had filled 235 vacancies on the Article III and Article IV courts: 175 on the district courts, 3 on the Court of International Trade, 54 on the circuit courts, and 3 on the Supreme Court. This Administration’s ability to fill so many vacancies in a time of extreme partisanship was not only due to the fact that Republicans controlled the Senate, but also because of changes to standing and informal rules.
Blue Slip Process Weakened. The role of the blue slip in the nomination and confirmation process became an issue of considerable debate during the Trump Administration. 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 chair 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 chair 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 chair 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.
While different chairs have used the blue slip in different ways, during the Obama presidency, Senator Leahy insisted that two positive blue slips from the home-state senators were required prior to committee action. This enabled the Republican minority to continue to exert some influence over the president’s selection of nominees. Since there was little reason to nominate someone who would languish in committee due to inaction, there was a strong incentive for the administration to continue to engage in the practice of pre-nomination consultation with senators from the opposite party, even after the nuclear option was invoked.
During the 115th Congress, after President Trump took office, Senate Judiciary Committee Chairman, Senator Grassley, came under intense pressure from his party's leadership to abandon the blue slip process entirely. In late November 2017, Senator Grassley said that as long as there was consultation with the home-state senators, he would decide how he would handle blue slips for circuit nominees on a case-by-case basis. Senator Grassley, however, failed to explain what kind of consultation would qualify. The first nominee to have a hearing without the return of both blue slips was David Strass, nominated to the 8th Circuit. During the rest of the Congress, several other circuit court nominees who did not have the support of one or both home state senators, including Michael Brennan (7th Circuit) and Ryan Bounds (9th Circuit), also had hearings.
Senator Graham, who took over the chairmanship of the Senate Judiciary Committee in the 116th Congress, also ignored the blue slip tradition for circuit court nominees. He has held hearings for circuit court nominees who were opposed by both home state senators. For example, hearings were scheduled for two 2nd Circuit nominees and three 9th Circuit nominees even though both of their home state senators declined to return blue slips.
In the 117th Congress, Senator Grassley will take on chairmanship of the Committee if the Republicans maintain their control of the Senate, which will be determined by two run-off elections being held in Georgia in January 2021.
Senate Rule Change Reduces Debate on Judicial Nominees. The long-standing rules of debate on judicial nominees and executive branch officials who are subject to nomination and confirmation had allowed up to 30 hours of floor debate prior to a confirmation vote. Senate Majority Leader McConnell proposed a rule change in March 2019 to limit debate on district court nominees and sub-cabinet executive branch nominees to two hours. While a Senate rule change normally requires 67 votes to pass, Senator McConnell resorted to the use of the "nuclear option", a set of procedural moves that enable a standing rule to be changed by a simple majority vote. The proposed rule change was adopted, thereby further diminishing the power of the minority to dissent.
President Trump Appoints Third Justice to the Supreme Court during 2nd Session. Justice Ruth Bader Ginsburg died on September 18, 2020, giving President Trump the opportunity to nominate and appoint a third justice to the Supreme Court. Within a short time after her death, Senate Majority Leader McConnell announced that the Senate would act to confirm a Supreme Court nomination prior to the upcoming presidential election, and just over a week before Justice Ginsburg died, the President issued an expanded list of individuals he was considering for nomination to the Supreme Court.
Despite significant opposition from Democrats, academics, concerned non-governmental organizations and media commentators, Judge Barrett, who at the time was serving as a judge on the Court of Appeals for the 7th Circuit, was nominated on September 26, 2020. The Senate Judiciary Committee held her confirmation hearing on October 12 – 15, and she was confirmed by the Senate by a vote of 52-48 on October 26. All but one Republican Senator voted in favor and all Democrats voted against her confirmation, in protest of McConnell blocking the consideration of Judge Merrick Garland following the death of Justice Scalia on February 13, 2016, on the grounds that the American people deserved to have the next president fill that vacancy since it happened in the last year of President Obama’s presidency. ABA president Patricia Refo issued this statement following the death of Justice Ginsburg. The ABA Standing Committee on the Federal Judiciary, which evaluates the professional qualifications of Article III judicial nominees, gave Judge Barrett a unanimous “Well Qualified" rating to serve as Associate Justice of the Supreme Court. The Chair of the Standing Committee and the principal evaluator testified at her hearing on October 15.
In March 2019, the Judicial Conference of the United States submitted its biennial recommendation regarding the need for additional Article III judgeships. It is recommending the creation of five new circuit court judgeships (all for the 9th Circuit), 65 permanent district court judgeships, and the conversion of eight existing temporary district court judgeships into permanent judgeships.
Over the course of the Congress, numerous bills were introduced to provide much needed new judgeships on a piece-meal basis, but none received significant attention. Following the Barrett confirmation, an omnibus judgeship bill was introduced by Senator Todd Young ( R-IL). (A bill number was never assigned, but a draft of the bill is available here: https://www.young.senate.gov/imo/media/doc/SIL20A68.pdf) It would have created 65 new judgeships. However, the legislation died without action at the adjournment of the 116th Congress.
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 the 114th Congress.
In the 115th Congress, prior to voting on Neil Gorsuch for Associate Justice of the Supreme Court of the United States, Senate Majority Leader McConnell used the same tactic to extend the new Senate filibuster rule to Supreme Court nominees.
Please click here for additional information about the nomination and confirmation process during prior Congresses.