President Donald Trump must soon flood the federal judiciary with qualified conservative candidates, or he will allow Democrats to drag out the process over years. And the Senate needs to dispense with arcane rules that will allow Democrats to block Trump’s qualified nominees, says one legal expert.
The stakes are high after the latest judicial roadblock to slow down Trump’s second executive order related to travel and immigration.
On Wednesday, U.S. Judge Derrick K. Watson blocked Trump’s revised travel order restricting immigration temporarily from six predominantly Muslim nations. Watson, an Obama appointee based in a Honolulu federal court, cited Trump surrogates’ campaign-era comments about Muslim immigration in his decision, but ignored the relevant federal statute, which unquestionably gives Trump the right to restrict foreign travelers.
Watson argued the temporary ban is a thinly veiled attempt to ban Muslims based on their religion. Trump vowed to fight for the latest order all the way to the U.S. Supreme Court. The restraining order now placed on Trump’s travel order underscores the need for Trump to speed up his appointments.
“It is vital that Trump nominate as many judges as possible as quickly as possible,” said Joseph diGenova, the U.S. attorney for the District of Columbia under President Reagan. “[The nomination of Neil] Gorsuch demonstrates the lengths to which the Democrats will go to obstruct these nominees.”
Just by taking office, Trump gets to replace 13 percent of federal judges. That’s twice the number of judicial appointments Obama got to make when he assumed office in 2009. According to the federal judiciary’s official website, there are 116 vacancies on the U.S. district courts, the U.S. appellate courts, and the U.S. Supreme Court. There are 856 seats in the U.S. district courts and the U.S. appellate courts in total. There are another six open seats on the U.S. Court of Federal Claims, and two on the U.S. Court of International Trade.
Trump has already moved to replace the late Justice Antonin Scalia on the Supreme Court with U.S. Judge Neil Gorsuch.
Watson, an Obama appointee, clearly helped influence policy and debate months after the president who appointed him had left office. The Watson opinion shows federal judges are the very definition of “legacy” for a president. They linger on federal benches for years, issuing opinions made in the spirit of the presidents who put them there.
It’s why some conservatives want the Republicans, who control the U.S. Senate by two votes, to abolish the filibuster for all judicial nominees. The Senate gets to vote on federal judges, but it needs 60 votes to overcome a filibuster. The GOP has just 52 senators.
But diGenova is also concerned about another trick the Democrats can use to hamper the president’s ability to select judges.
“In addition to this obstructionism, there is the fact that Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has adopted the ‘blue-slip-as-veto’ policy of his Democratic predecessors,” said diGenova. “That means that if a Democrat senator from any state objects (either says ‘no’ to a nominee or simply does not return the blue slip to Grassley) to a Trump nominee for a federal district court, a U.S. attorney, or a U.S. marshal, that person is dead as a nominee. The Democrats can thwart the will of the people in all states where they have at least one senator.”
DiGenova said the tactic was used in 2004, to help put in place the first federal judge to thwart Trump’s first order on the travel ban. That man was U.S. Judge James L. Robart of Washington State.
“That’s how Judge Robart, a nominal Republican, came to be in Washington State,” said diGenova. “He was nominated by President George W. Bush but was in fact the choice of the Democrats in that state who would not allow a conservative Republican to be nominated by Bush. The same thing will happen now unless the ‘blue slip’ policy of Chairman Grassley is changed to make the blue slip only one factor to be considered, and not allow the Democrats automatically to block Trumpers in their states from judgeships, U.S. attorney [posts] or marshal [jobs].”