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.
While the pace at which the Majority Leader is scheduling confirmation votes is in sharp contrast to the restrained voting schedule he imposed on judicial nominees during the Obama Administration, it is in alignment with this Administration’s and his announced intention to fill vacancies expeditiously. Their professed objective has been to focus on filling circuit court vacancies first, and then to turn to district court nominees. It has worked: as of October 1, the Trump administration has filled 42 circuit court vacancies since taking office and is poised to fill several more before the 1st Session comes to a close. This Administration’s ability to fill so many circuit court vacancies in less than three years in office is not only due to the fact that Republicans control the Senate, but also because the chair of the Senate Judiciary Committee is not applying the “blue slip” process to circuit court nominees.
Blue Slip Process Under Siege
The role of the blue slip in the nomination and confirmation process has become 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 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.
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 Stras, 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, is also ignoring the blue slip tradition for circuit court nominees. He is holding hearings for circuit court nominees who are 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.
Senate Rule Change to Reduce 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.
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.
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.
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.