115th Congress: Significant Events and Issues
When the 115th Congress convened on January 7, 2017, 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 113thCongress (see Historical Note below), Democrats retain some tools to slow down the process (by demanding cloture votes, for example), but they will be unable to prevent the confirmation of judicial nominees that they find objectionable.
While delays were 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 a dozen 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 the number of vacancies hovering around 140 since the end of last summer, the judiciary has been forced to conduct its business with over 15% of authorized Article III lower court judgeships are vacant.
Blue Slip Process Under Siege
he 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 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 prenomination consultation with senators from the opposite party, 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. At first, Senator Grassley’s spokesperson said that 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.” However, Mr. Grassley appeared to cave under pressure from leadership. (Last fall, Senate Majority leader McConnell told The New York Times that “the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.” ) In late November 2017, Senate 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 Stras, nominated to the 8th Circuit. Since then, other circuit court nominees, including Michael Brennan (7th Circuit) and Ryan Bounds (9th Circuit). So far, Senator Grassley has adhered to his predecessor’s policy of requiring two positive blue slips prior to moving forward with district court nominations.
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.