December 04, 2020

Selecting District Judges in the 116th Senate Lame Duck Session

Carl Tobias

The Senate promptly began a lame duck session after voters had clearly named Joe Biden as President yet seemingly returned a GOP upper chamber majority. These elections followed a number of years in which President Donald Trump and the Republican chamber majority have appointed three extremely conservative, able, young Supreme Court Justices, fifty-three similar appellate court judges, and 170 comparatively analogous district court jurists. They confirmed nominees by violating the rules, practices, and customs that have long governed judicial selection and produced highly qualified, mainstream judges. Those phenomena jeopardized ideological balance and numerous diversity elements on the federal courts, the selection process and citizen respect for it, the judiciary, the executive and the Senate. The developments, thus, warrant review to comprehend how Trump plus Democratic and Republican senators might properly treat confirmations in the lame duck session. 

The piece first evaluates appointments in the chief executive’s four-year term and Congress’ 115th and 116th sessions. This canvass plainly reveals that Trump and numbers of GOP senators contravened, modified or downplayed procedures and traditions which had facilitated well qualified, centrist jurists’ selection over numerous years. 

The paper then analyzes implications of these selection processes. The second part finds that Republicans confirmed many exceptionally conservative nominees, who directly altered ideological balance on the federal judiciary, especially involving the Supreme Court and circuits, while eroding the process of selection, which had afforded impressive, moderate jurists. Republicans’ emphasis on confirming appellate nominees meant that the Grand Old Party neglected district court vacancies which soared to practically 140.

I. Trump Administration Judicial Selection

A. Nomination Process

The last section proffers recommendations for improvement across the lame duck session. For example, Trump must refrain from nominating more candidates for the twenty-two open posts that lack nominees, in deference to the record eighty million Americans, who distinctly spoke by choosing a new President, and the minimal time which remains in the 116th Congress that does not allow rigorous candidate vetting. Because Trump has proceeded, the Senate must eschew processing all lame duck session nominees, until it meaningfully evaluates the prospects by convening robust hearings and discussions before Judiciary Committee votes and rigorous chamber floor debates ahead of confirmation ballots. 

Across the 2016 presidential campaign, Trump specifically vowed to nominate and confirm accomplished ideological conservatives and respected the pledges by confirming and marshaling Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett with many similar circuit, and comparatively few, analogous district court picks.[1]Trump broke appeals court records the opening year with twelve, eighteen the second and twenty in 2019.[2]

Trump has employed a few vaunted traditions. For instance, Trump, like each contemporary President, accorded substantial responsibility to the first White House Counsel, Donald McGahn, placed large responsibility in the Justice Department (DOJ), assigned responsibility for every trial court vacancy to home state politicians and stressed circuits.[3]

When proposing appellate selections, this President eschewed, ignored or underemphasized longstanding norms. Counsel effectively accentuated conservatism and youth by deploying litmus tests, including concerns related to the modern administrative state, while depending principally on the “short list” of possible Supreme Court prospects whom the Federalist Society assembled.[4] Trump emphasized the circuits, because they are courts of last resort for nearly all cases, articulate greater policy than district courts and issue rulings that cover several jurisdictions.[5] Most Trump appellate confirmees are quite conservative and particularly young.

Essential was negligibly consulting home state politicians, a helpful activity which contemporary administrations use; that was a chief reason for “blue slips,” an idea which only permitted hearings when each senator from a pertinent state proffered slips in President Barack Obama’s tenure. Democrats said McGahn engaged in no meaningful consultation regarding numbers of appellate vacancies, while McGahn urged that the Constitution does not actually require consultation.[6]

Another deviation from lengthy precedent was exclusion of the ABA from selection. Modern Presidents in office following Eisenhower, save George W. Bush, comprehensively invoked ABA examinations and ratings when tapping candidates, while Obama deftly avoided forwarding people with not qualified rankings.[7] However, Trump marshaled ten such choices; three appeals court, and five trial level, nominees felicitously won confirmation.[8]

The administration practiced more conventional approaches when sending district court aspirants. For instance, Trump, like contemporary Presidents, relied on suggestions by politicians from home states and premised nominations on capability to address enormous dockets.[9] Many submissions were preeminent choices with strong ABA ratings.[10]However, three district picks withdrew and the ABA ranked three others not qualified.[11]

The White House ignored or downplayed respected district selection tools. The major concern with Trump’s action was his complete failure to prioritize the forty-seven vacancies, thirty-five of which are emergencies, in the mad rush to confirm able, conservative, young judges for every appellate opening.[12] Trump proffered fewer nominees in states with Democratic senators that face many emergencies.[13] Indeed, California and New York have experienced myriad vacancies, numbers implicating emergencies, but Trump made no California trial level appointment until 2020 while he managed to confirm relatively few New York jurists.[14]

Another constructive avenue which Trump deemphasized was increasing minority judicial representation, especially compared to Democrats.[15] He apparently initiated negligible endeavors to recruit, investigate and confirm ethnic minorities or lesbian, gay, bisexual, transgender or queer (LGBTQ) picks by, for instance, tendering diverse staff for appointments efforts or urging politicians to suggest numerous minority candidates.[16] Among Trump’s 223 confirmees, only thirty-one are persons of color with Mary Rowland and Patrick Bumatay identifying as LGBTQ,[17]while of 255 nominees, forty choices are people of color.[18]

B. Confirmation Process

The confirmation system directly resembled the deleterious elements of the nomination process in multiple ways, especially by violating, revising or undercutting valuable traditions or by abolishing, changing or diluting ideas which had operated well. Apt examples were selective revamping of (1) the century-old policy for blue slips – which allowed committee hearings only when both politicians from home states proffered slips – and (2) panel hearings. 

In fall 2017, Chuck Grassley (R-IA) – who across the past two Congresses served as Chair – announced he would create an exception to the blue slip custom by arranging hearings on circuit prospects who lacked slips provided by two home state officials particularly when their opposition to nominees seemed “political or ideological.”[19] This determination amended the blue slip concept that Republican and Democratic party senators consistently followed all eight years in Obama’s tenure, which comprised the most recent, applicable precedent.[20]

Conditions deteriorated with arrangement of a January 2018 hearing for the Wisconsin Seventh Circuit nominee whom Trump proposed – even though the administration minimally consulted Senator Tammy Baldwin (D) and the person tendered lacked the required selection commission votes – particularly as Grassley nominally justified lodging in the Chair (himself) ample discretion for concluding whether the executive had “adequately consulted.”[21] Grassley retained this approach by setting a May committee hearing for an Oregon Ninth Circuit pick, although McGahn negligibly consulted the Oregon senators and the candidate allegedly withheld pertinent material from a vetting committee.[22]

Grassley acknowledged that blue slips were intended to ensure that Presidents consult home state politicians while strenuously protecting lawmakers’ selection prerogatives and core interests of the electorate they duly represent, and he certainly did respect slips for district picks, as has Lindsey Graham (R-SC), the next Chair.[23] However, GOP senators perennially relied on slips to halt able, mainstream circuit nominees during Obama’s tenure, many for political or ideological reasons, the very grounds which Grassley expressly deemed illegitimate.[24]

He also changed efficacious hearing rules and traditions. Critical was arranging ten sessions for which two circuit, and four trial, court nominees appeared without Democrats’ permission; this radically contrasted to Democrats’ holding threesimilar hearings in Obama’s eight years and then in unusual circumstances with explicit GOP approval.[25] Most hearings were rushed, lacking care proper for nominees who seek life tenure.[26] Many nominees delayed by repeating inquiries, and they could deflect, while evasively answering, politician queries.[27] Related was decided reluctance to say whether, if confirmed, the designees would recuse when lawsuits treated matters that nominees had litigated or about which many enunciated clearly-held views.[28]

The discussions ahead of committee ballots analogously lacked useful context and content. Members negligibly probed issues, even implicating qualifications which are crucial to federal jurists who serve for life and resolve critical questions. One deviation from “regular order” was Grassley’s decision against waiting for cautious ABA examinations and ratings prior to committee votes, despite incessant requests of Dianne Feinstein (D-CA), the Ranking Member, to have them once the ABA finalized the work. Grassley vociferously stated that he would not allow this exogenous political group to drive scheduling.[29] It, thus, was predictable that more controversial nominees secured mostly party-line ballots.[30]

After the committee approved nominees, similar, but less troubling, problems complicated meaningful floor review: Democrats sought cloture and roll call votes for practically all nominees, even superb, moderate individuals who could easily win appointment; the GOP had a narrow chamber majority; and detonating the “nuclear option” in 2013 meant nominees captured appointment on majority ballots.[31] Peculiarly relevant was compression of district nominee votes upon Senate recesses. For example, over mid-December and late July 2019, thirteen mustered confirmation following restricted notice and chamber debate.[32] The many nominees, their massive records and the tardy notice left Democrats minimal resources to prepare.[33]

Senate debates preceding floor ballots resembled those for committee nominee discussions.[34] The minority actively sought cloture votes regarding nominees, while much debate over the thirty hours lacked relevance to particular nominees, and even when senators debated candidates, few heard the ideas propounded. Republicans apparently found the thirty-hour debate rule so unhelpful that the politicians dramatically reduced the hours to two.[35]

The GOP majority, similar to Trump, prioritized circuit over district appointments, confirming nominees from states with Republican politicians, approving conservative white males and filling non-emergency openings, but certain parameters derived mostly from the nominating system.[36] These priorities helped Trump set the record for appellate confirmations over a President’s first year, yet they left more than twenty district selections with no appointment plus huge lower court vacancies at 2017’s conclusion while the priorities meant few nominees realized appointment in states Democrats represent, two minority jurists won confirmation and court emergencies drastically increased.[37] The emphases also permitted Trump to break the circuit judge record across his second year, but they had problematic impacts similar to the previous year on district nominees upon 2018’s close and meant small numbers of candidates received approval in jurisdictions with Democratic politicians, Trump confirmed few minority nominees and emergencies were substantial, while the last two years resembled the first pair.[38]

II. Implications

The selection and confirmation processes’ descriptive analysis reveals manifest detrimental ramifications in the concepts which Trump and the chamber apply. Cogent yardsticks are the three circuit, and forty-seven district, court openings, thirty-five of which are emergencies; many in the latter two categories emanate from jurisdictions that Democrats represent and a troubling lack of confirmees and nominees comprise minority individuals.[39]

The numerous vacancies, ample percentages constituting emergencies and clustering in districts and states represented by Democrats, together with their protracted character and confined minority representation have specific adverse effects. The data inflict pressures on numbers of trial court judges to speedily, economically and fairly resolve civil and criminal matters and correspondingly on litigants and numerous Democratic politicians in states that realize openings.[40] District jurists comprise the justice process’ “workhorses” and finally resolve mammoth civil filings and criminal dockets receive precedence under the Speedy Trial Act, while numbers of prolonged open seats frustrate minority party home state politicians, whom constituents blame for the significant, protracted vacancies, depriving the electorate and litigants of court judicial resources which they need and senators of patronage.[41]

Many salient parameters – including the forty-seven trial court openings (thirty-five emergencies) and comparatively few minority appointees – illustrate the necessity to confirm more jurists who are diverse. Trump’s neglect of minority representation has negative effects. The federal courts are one locus for justice where people of color, specifically Black, Latinx and Indigenous persons, can essentially be overrepresented in the criminal justice system and  underepresented on the district court bench.  

Enhanced minority representation affords numerous benefits. Manifold people of color, women and LGBTQ judges improve court decisionmaking about numbers of elemental issues.[42] The jurists constrict ethnic, gender and sexual orientation biases which undercut justice.[43] Judges, who reflect the United States, directly increase public confidence by showing that abundant persons of color, women and LGBTQ candidates are fine jurists.[44]

Trump’s minimal consultation with home state politicians, transparency and rigor when canvassing submissions for nominees, exclusion of ABA input and other efficacious constructs, dependence on ineffective measures and proclivity for stressing rapid confirmation of ample conservative appellate judges undercut presidential discharge of constitutional responsibilities to name and confirm able jurists for the massive openings, especially in the districts. Senate propensity to quickly confirm numerous similar judges – through perverting blue slips, eschewing or modifying other useful procedures, notably searching probes in hearings, and rubberstamping Trump choices – eroded senators’ fulfillment of advice and consent.

Openings’ large quantity and prolonged character, specifically for districts, might impede bench efforts to realize the prominent duty for swiftly, inexpensively and equitably resolving cases by imposing enormous pressure on jurists and stalling litigation’s disposition. When the circuit, and peculiarly the trial, courts lack judicial resources to supply justice for long periods, this inflicts numbers of deleterious effects. Incessant, express ideological overemphasis when appointing jurists makes the courts resemble the political branches. Judges who secure nomination and confirmation through distinctly partisan and staunchly politicized selection practices, seem overly partisan, which erodes citizen trust regarding the bench.[45]

In sum, President Trump has successfully appointed circuit and district jurists, creating appellate records; most confirmed are exceptionally conservative, young and capable. Nevertheless, he abrogated, changed or deemphasized vaunted measures which have recently promoted fine judges’ selection and confirmation, while the U.S. and the courts possess forty-nine trial level vacancies, thirty-six implicating emergencies. Most important, the public has spoken with Joe Biden’s election as President, which suggests that numerous voters could have lost faith in Trump’s ability to discharge many essential constitutional responsibilities, including abundant federal judges’ nomination and confirmation. Thus, the final part evaluates how to conduct appointments in the lame duck session’s remainder. 

III. Suggestions

The people have clearly spoken by electing Joe Biden President. Accordingly, Trump should have forgone more candidate nominations, and the chamber majority arguably ought to have ceased appointing prospects over the lame duck session. Nonetheless, Trump chose two appeals court picks, while Mitch McConnell (KY), the GOP leader, and his Republican colleagues have already confirmed eight district jurists.[46] Thus, because the GOP proceeded, Republicans and Democrats need to seriously contemplate the mechanisms below.[47]  

For the twenty-three openings without nominees, powerful reasons suggest why Trump must refrain from nominating more. First and foremost, the citizenry explicitly voiced a preference by selecting Biden as President. The few legislative days which remain during the session concomitantly will not permit robust designee vetting.[48] Fairness also warrants importance. Comparison of the most recent applicable precedent, Obama’s concluding two years, with 2007-08 indicates asymmetrical disposition of each party’s nominees,[49] while modern White Houses in fact rarely designate nominees, much less confirm them, after federal elections.[50]

Respecting the twenty individuals whom Trump earlier nominated but lack committee hearings in jurisdictions that at least one Democratic senator represents,[51] the lawmakers ought to pause the sessions until the politicians dutifully engage in rigorous, finely-calibrated, multifactor evaluations.[52] This should facilitate the determination whether to provide blue slips, thus allowing hearings, which panel Chair Graham appropriately honors.[53]

One salient factor is whether nominees possess sufficient qualifications – regarding intelligence, diligence, competence for addressing huge case loads, ethics, independence, diversity (vis-à-vis ethnicity, gender, sexual orientation, ideology, and experience), plus measured judicial temperament – to be strong federal court jurists. Ideological perspectives are correspondingly an elemental factor. The relevant question is whether nominees have mainstream views, which careful appreciation of basic constituents embodied in the home state’s legal, and broader, culture plainly displays. When senators reasonably doubt that nominees possess the requisite substantive qualifications or moderate enough perspectives, senators need to ascertain whether they can identify, examine and proffer superb candidates who provide greater qualifications and diversity while holding mainstream values. If so, these politicians ought to cautiously retain Trump nominees’ blue slips and propose fine, moderate submissions who enhance diversity to Biden upon his inauguration. 

A number of persuasive contentions support those approaches. The qualifications merit emphasis, because the nominees confirmed will possess life tenure and resolve crucial questions which strongly affect the public. More specifically, numerous forms of diversity could require attention, because they improve court decisionmaking, limit bias, and enhance public respect for the judiciary. Ideological views concomitantly deserve stress, because President Trump and the GOP Senate majority have “packed” the Supreme Court and the courts of appeals with extremely conservative jurists, while the tribunals have become “out of whack” and need ideological recalibration plus expanded balance to duly sustain citizen respect and the judiciary’s legitimacy.[54]

If the GOP majority essentially ignores these concepts and continues to process nominees, although Biden has strongly earned the presidency, Democrats should vigorously protest the majority’s recalcitrance.[55] Nonetheless, Democratic senators can attempt to restore dynamic regular order by, for instance, carefully proposing “trades” with the GOP, as they have been.[56] For example, Democrats must staunchly oppose nominees who lack multiple core qualifications, garner not qualified ABA ratings or hold ideologically extreme perspectives and closely analyze highly qualified, mainstream, diverse “blue” state nominees. In exchange the GOP could advance particularly qualified, moderate nominees in “red” states.[57]

These constructs are pragmatic compromises which occasionally appeared to work efficaciously during the Trump years. The ideas can also restore some distinct components of regular order, which at once may chart a path to successful nominations and confirmations in the Biden Administration while perhaps curing or ameliorating the destructive “confirmation wars” and filling empty slots for the good of the presidency, the chamber and the country. The GOP as well should remember that the party might lose its narrow chamber majority.[58]

Conclusion

Across the congressional lame duck session’s first two weeks, President Donald Trump announced two circuit nominees, while the Republican majority has already confirmed six district prospects, five of whom are from jurisdictions with two GOP senators. Once Republicans and Democrats convene after the Thanksgiving Recess, both parties need to seriously consider ending appointments in deference to the populace who have expressly spoken by choosing Joe Biden President. If the GOP Senate majority, nevertheless, proceeds, Republicans and Democrats should cooperate and confirm excellent, mainstream, diverse judges by implementing the proposals recounted above throughout the lame duck session’s remainder. 

Endnotes

[1] Admin Office of the U.S. Courts, Judicial Vacancies, Confirmation List (2017-20); see Russell Wheeler, Judicial Appointments in Trump’s First Three Years: Myths and Realities (Brookings 2020).

[2] Carl Tobias, Keep the Federal Courts Great, 100 B.U. L. Rev. Online 196, 205 & n.24 (2020). President Kennedy named eleven. 163 Cong. Rec. S8,022-24 (daily ed. Dec. 14, 2017) (statements of Sens. Feinstein & Leahy).

[3] Carl Tobias, Senate Gridlock and Federal Judicial Selection, 88 Notre Dame L. Rev. 2233, 2240 (2013); Michael Schmidt, Lawyer for President Resigns, N.Y. Times, Oct. 18, 2018, at A13 (Pat Cipollone replaces McGahn). 

[4] Don McGahn, A Brief History of Judicial Appointments, 60 Wm. & Mary L. Rev. Online 105 (2019); Jeremy Peters, Trump’s New Judicial Litmus Test, N.Y. Times, March 26, 2018. The ideas apply now, as Society leader Leonard Leo aids Trump. Zoe Tillman, Conservative Group Is Reshaping Courts Under Trump, BuzzFeed News, Nov. 20, 2017; see Jimmy Hoover, Federalist Society Exec Leo Starts Consulting Firm, Law360, Jan. 7, 2020 (Leo resigns Society post but remains board Co-Chair); Don McGahn, Keynote Remarks at Federalist Soc’y Convention, Nov. 17, 2017 (Trump “insourced” selection to McGahn). 

[5] Sheldon Goldman, Picking Federal Judges (1997); Tobias, supra note 3, at 2240-41. 

[6] Thomas Kaplan, Trump Is Putting Indelible Conservative Stamp on Judiciary, N.Y. Times, July 31, 2018; McGahn Remarks, supra note 4. But see Zoe Tillman, Trump Confirmed Many JudgesBut He Has Not Reshaped the Courts, BuzzFeed News, Dec. 28, 2017 (Leo defense of McGahn vetting).  

[7] Statements, supra note 2; 163 Cong. Rec. S8,042 (daily ed. Dec. 14, 2017) (statement of Sen. Durbin).

[8] ABA Standing Comm. on Judiciary, Ratings of Art. III Judicial Nominees : 115th & 116th Cong. GOP senators contested ABA ratings, as it is a liberal political group. S. Judiciary Comm., Hearing on Nominees, Oct. 30, 2019 (Sen. Mike Lee (R-UT) urging ABA exclusion from process); Judicial Vacancies, Confirmation List (2017-20), supra note 1 (approving eight judges).

[9] Carl Tobias, Recalibrating Judicial Renominations in the Trump Administration, 74 Wash. & Lee L. Rev. Online 9, 19 (2017). But seeSeung Min Kim, Trump Could Remake Judiciary For Years, Politico, Oct. 17, 2017. 

[10] Texas District Judges Walter Counts and Karen Gren Scholer are examples. ABA Ratingssupra note 8.

[11] Jennifer Bendery, Trump Pick Drops Out After Embarrassing Hearing, Huffingtonpost, Dec. 18, 2017; Tom McCarthy, Judge Not, Guardian, Mar. 10, 2019. But see Tillman, supra note 8 (Leo defends McGahn).

[12] The U.S. Courts Administrative Office bases emergencies on huge length or case loads. Judicial Vacancies, Current Vacancies, Emergencies (2018), supra note 1. Emergencies soared from twelve to as many as eighty-six after the GOP won the Senate. Id. (2015-18). But seeWhite House, Office of the Press Sec’y, President Donald Trump Nominates James Sweeney to Fill Judicial Emergency, Nov. 1, 2017.  

[13] See sources cited supra note 1; see also White House, Off. of the Press Sec’y, President Donald Trump Nominates Ninth Wave of Judicial Nominees, Dec. 20, 2017 (more from “blue” states).

[14] Data verify “red” state priority. Judicial Vacancies, Emergencies (2020), supra note 1; see id., Confirmation List (2018-20) (appointing New York judges); Wheeler, supra note 1 (Senate confirmed nominees in two-GOP-senator states in 217 days, but consumed 412 days for nominees in two-Democratic-senator states.). 

[15] Stacy Hawkins, Trump’s Dangerous Judicial Legacy, 67 UCLA L. Rev. Discourse 20 (2019); Carl Tobias, President Donald Trump’s War on Federal Judicial Diversity, 54 Wake Forest L. Rev. 531 (2019).  

[16] LGBTQ means openly disclosed sexual preference, which some may have not divulged. LGBTQ individuals are considered “minorities” throughout this piece. See sources cited infra note 28.

[17] Judicial Vacancies, Confirmation List (2017-20), supra note 1; Tobias, supra note 2, at 211.

[18] For most appointees and nominees, see Tobias, supra note 2, at 211 & n.48. For the remainder, see Judicial Vacancies, Current Judicial Vacancies, Confirmations (2020), supra note 1.

[19] 163 Cong. Rec. S7,174 (daily ed. Nov. 13, 2017); id. at S7,285 (daily ed. Nov. 16, 2017); see S. Judiciary Comm., Hearing on Nominees, Nov. 29, 2017; S. Judiciary Comm. Majority, History and Context of the Blue Slip, Nov. 2, 2017; Carl Hulse, Trump’s Chance To Remake a Vexing Court, N.Y. Times, Apr. 8, 2018, at A13. 

[20] Grassley followed that as Chair in Obama’s last two years, as did Patrick Leahy (D-VT) the first six. S. Judiciary Comm., Exec. Business Mtg., Feb. 15, 2018 (statements of Sens. Grassley and Leahy). 

[21] Id.; see supra note 6. 

[22] Maxine Bernstein, Oregon Senators Say Bounds Unsuitable for 9th Circuit Vacancy, Oregonian, Feb. 12, 2018; Jimmy Hoover, 9th Circ. Pick Forces Grassley to Choose, Law360, Mar. 29, 2018; S. Judiciary Comm., Hearing on Nominees, May 9, 2018; id., Exec. Business Mtg., June 7, 2018 (panel approval); 164 Cong. Rec. S5,098 (daily ed. July 19, 2018) (withdrawing nomination); see Carl Tobias, Curing the Federal Court Vacancy Crisis, 53 Wake Forest L. Rev. 883, 892-93, 898 (2018) (analyzing more states’ circuit disputes). 

[23] See sources cited supra note 19. Graham, who became Chair last year, vowed to follow Grassley’s policy. S. Judiciary Comm., Exec. Business Mtg., Feb. 7, 2019. For example, when Sen. Kirsten Gillibrand (D-NY) kept her slip, a New York nominee withdrew. White House, Off. of the Press Sec’y, Three Withdrawals Sent to the Senate, Sept. 19, 2019; Robert Gavin, Gillibrand Blocked Federal Bench Nominee, Albany Times Union, Aug. 29, 2019.

[24] See supra text accompanying note 19. 

[25] Statements, supra note 2; Carl Tobias, Filling the Fourth Circuit Vacancies, 89 N.C. L. Rev. 2161, 2174-76 (2011). One had two controversial picks, four district ones and an ABA representative and was so full district picks were only introduced. S. Judiciary Comm., Hearing on Nominees, Nov. 15, 2017; see id., Oct. 24, 2018 (hearing for two nominees after Senate left to campaign). Graham held five 2019 hearings for two circuit picks.

[26] Statements, supra note 2 (lack of care). Senators had five minutes to ask queries.

[27] E.g., S. Judiciary Comm., Hearing on Nominees, Jan. 18, Apr. 28, & June 6, 2018 (Texas district picks); Statements, supra note 2. But see 163 Cong. Rec. S8,025 (daily ed. Dec. 14, 2017) (statement of Sen. Cornyn).

[28] S. Judiciary Comm., Hearing on Nominees, Feb. 5, 2019 (Rao); id., Sept. 25, 2019 (Pitlyk); 28 U.S.C. § 455 (2012) (recusal); Lambda Legal, Stacking the Courts (2019) (many Trump judges’ anti-LGBTQ views). 

[29] Tobias, supra note 2, at 199, 215 & n.62 (analyzing regular order and six district nominees who had no ABA ratings the day before the hearing). But see statements, supra note 2 (touting ABA input’s value).

[30] Judicial Vacancies, supra note 1 (approving Judges Grasz & Brennan); Carl Tobias, Senator Chuck Grassley and Judicial Confirmations, 104 Iowa L. Rev. Online 31 (2019) (analyzing 2015-19 tenure as Chair). 

[31] 159 Cong. Rec. S8,418 (daily ed. Nov. 21, 2013) (nuclear option); Carl Tobias, Filling the D.C. Circuit Vacancies, 91 Ind. L. J. 121,122 (2015). In 2017, the GOP Senate majority margin was 51-49 and now is 52-48. 

[32] 165 Cong. Rec. D1399 (daily digest Dec. 18, 2019), id. at D1409-10 (daily digest Dec. 19, 2019); id. at D932-33 (daily digest July 30, 2019), id. at D939 (daily digest July 31, 2019).  

[33] Feinstein said this and found notice tardy. S. Judiciary Comm., Exec. Business Mtg., Nov. 2, 2017. For more analysis of this, late notice and similar effects at the circuit level, see Tobias, supra note 2, at 215-16.

[34] See supra notes 30-31 and accompanying text.

[35] 165 Cong. Rec. S2,220 (daily ed. Apr. 3, 2019); Carl Hulse, Garland Lurks as GOP Threatens Nuclear Option Again, N.Y. Times, Feb. 21, 2019, at A14. 

[36] See supra notes 4-8, 12-18 and accompanying text.

[37] U.S. Senate, Exec. Calendar, Dec. 23, 2017; supra notes 12-18, infra note 41 and accompanying text.

[38] Trump seated twenty-three circuit judges, but forty-seven district vacancies and thirty-five emergencies remain. Judicial Vacancies, Confirmation List, Emergencies (2018-20), supra note 1.

[39] See supra notes 12-18. District emergencies remain worse. Judicial Vacancies (2017-20), supra note 1. 

[40] Fed. R. Civ. P. 1; see Patrick Johnston, Problems in Raising Prayers to the Level of Rules, 75 B. U. L. Rev. 1325 (1995). The jurists are the only judges whom most federal court litigants encounter. 

[41] Joe Palazzolo, In Federal CourtsThe Civil Cases Pile Up, Wall Street J., Apr. 6, 2015; see John Emshwiller & Gary Fields, As Criminal Laws Proliferate, More Ensnared, Wall Street J., July 23, 2011. 

[42] Theresa Beiner, The Elusive Quest for a Diverse Bench in the New Millennium, 36 U.C. Davis L. Rev. 597 (2003); Jennifer Peresie, Female Judges Matter Gender and Decisionmaking in the Federal Appeals Courts, 114 Yale L. J. 1759 (2005). But see Stephen Choi et al., Judging Women, 8 J. Empirical Legal Stud. 504 (2011). 

[43] Seee.g., Ninth Circuit Task Force on Racial, Religious and Ethnic Fairness: Final Report (1997); Federal Courts Study Committee, Report of the Federal Courts Study Committee 169 (1990).

[44] Sylvia Lazos, Only Skin Deep ?, 83 Ind. L. J. 1423, 1442 (2008); Jeffrey Toobin, The Obama Brief, New Yorker, Oct. 27, 2014. Many conservative, young and strong minority and female Trump appointees refute the idea that confirming minorities will erode merit, as the pool is small or lacks enough conservatives, as his confirmees offer conservatism and merit. He only needed to capitalize on this potential, which Biden will. Tobias, supra note 2, at 223; Gillian Brockell, Joe Biden Is Making a Supreme Court Promise, Wash. Post, Feb. 26, 2020.

[45] Tobias, supra note 2, at 223. 

[46] It confirmed two the session’s first week, four the second and two the third. Judicial Vacancies, Confirmations (2020), supra note 1. After the elections, Trump announced a First, and one Seventh, Circuit pick. White House, Off. of the Press Sec’y, President Donald Trump Announces Judicial Nominees (Nov. 13, 2020); id., Two Nominations Sent To the Senate (Nov. 16, 2020); id., Four Nominations Sent To the Senate(Nov. 30, 2020). 

[47] Three circuit vacancies exist; four nominees need only final votes. Many reasons below show why the GOP must fill no openings, but it will likely persist. Alex Swoyer, Mitch McConnell on Judges: My Motto is ‘Leave No Vacancy Behind,’ Wash. Times, Feb. 11, 2020. Democrats also lack means to stop approval.

[48] U.S. Senate, Calendar (2020). 

[49] Persuasive arguments from the 2015-16 precedent support Democrats’ refusal to confirm Trump nominees. The GOP Senate majority allowed votes on two Obama circuit, and eighteen district, judges. This contrasted to the Democratic majority’s approval of ten Bush circuit, and fifty-eight district, judges. Judicial Vacancies, Confirmations (2007-08, 2015-16), supra note 1. Democrats did seek cloture and roll call votes on most Trump nominees. Tobias, supra note 2, at 204. GOP senators also recite a litany of Democrats’ mistreatment of GOP Presidents’ nominees. E.g., S. Judiciary Comm., Hearing on Amy Coney Barrett To Be a Supreme Court Justice (Oct. 12, 2020) (statements of Sens. Cruz & Lee). In any event, Democrats should oppose approvals, insist on rigorous processes and make the record, but GOP application of rules and customs favors the majority. 

[50] Madison Alder, TrumpGOP Defy Precedent With Lame Duck Appointees, U.S.L.W., Nov. 18, 2020. One modern exception was the effort of Sen. Ted Kennedy (D-MA) that persuaded Sen. Strom Thurmond (R-SC) to process Stephen Breyer’s late 1980 First Circuit nomination.Goldman, supra note 5, at 261.

[51] No state with a vacancy that has a nominee waiting for a hearing has two GOP senators.

[52] Letter from Sen. Dianne Feinstein to Sen. Lindsey Graham, Nov. 12, 2020. The panel did convene a hearing for one circuit, and three district, nominees; all would fill vacancies in states with two GOP senators. S. Judiciary Comm., Hearing on Nominees (Nov. 17, 2020); see Tobias, supranote 2, at 234 (similar evaluation).

[53] See supra note 23 and accompanying text. 

[54] The 60 Minutes Biden Election Interview, Oct. 25, 2020; Tobias, supra note 2, at 223-24.

[55] Ever since the GOP won a majority, it has eroded Senate rules and customs, which Judge Merrick Garland’s unprecedented rejection illuminates, so the GOP will not relent now. Tobias, supra note 2, at 229. 

[56] Tobias, supra note 2, at 235 (examples from California and New York selection); see Carl Tobias, The Republican Senate and Regular Order, 101 Iowa L. Rev. Online 12 (2016).  

[57] For difficulties with these ideas, see Tobias, supra note 2, at 235, and the asymmetrical confirmations in the lame duck session’s first three weeks, supra note 49. The ideas are last resorts but may be warranted in exigent situations. Illustrative are protracted emergencies in states with two GOP senators. 

[58] This will depend on the two Georgia Senate runoffs in early January. Lenny Bronner, Why Democrats Face An Uphill Battle in Georgia’s Senate Runoffs, Wash. Post, Nov. 23, 2020; Carl Hulse, Democrats in Georgia Runoffs Work to Defy History of G.O.P. Odds, N.Y. Times, Nov. 15, 2020, at A19.

Carl Tobias

Professor

Professor Carl Tobias is the Williams Chair in Law at the University of Richmond. I wish to thank Peggy Sanner and Jamie Wood for ideas, Leslee Stone for processing and Russell Williams for support. Remaining errors are mine.