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Reported by Frank Scaturro DECEMBER 4, 2020

As the courts have become hyper-politicized over the past few decades, the judicial nomination process has deteriorated. With this presidential term drawing to a close, we should note the new depths of obstruction that have become a part of the Senate Democrats’ playbook these past four years.

Origins of Obstruction

Matters were already bad when a Democratic Senate rejected Robert Bork for the Supreme Court in 1987 with such notorious vilification that “bork” was added to the dictionary as a verb denoting such unfair and harsh tactics. Four years later came personal vilification for Clarence Thomas before he squeaked by the Senate on a 52–48 vote.

Thomas nonetheless made it through a Democratic Senate that had not entirely shaken a long tradition of bipartisanship on judicial nominations. In fact, from the government’s establishment in 1789 through 2000, 97 percent of Senate-approved judges faced no recorded opposition, and 96 percent were confirmed by voice vote or unanimous consent as opposed to roll-call votes.

Recorded votes tended to be lopsided. When President Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, instead of Republicans retaliating for past treatment, the nominees were confirmed respectively by margins of 96–3 and 87–9. This was despite a number of known controversial positions Ginsburg had taken during her career that Republicans chose not to highlight.

During George W. Bush’s administration, Democrats engaged in wholesale filibusters of circuit court nominees, a tactic that resulted in the defeat of several. Previously, only one judicial nomination fell apart after coming up short on a vote on cloture — the procedure by which senators, with a supermajority vote, could end debate and force a confirmation vote. That was the fate of Justice Abe Fortas, whom Lyndon B. Johnson tried to elevate to chief justice in 1968.

Whether Fortas could garner the simple majority of senators required for confirmation was unclear. His unusual case included bipartisan opposition and ethical questions — he actually resigned from the Supreme Court the following year — and did not leave even the most strident opponents of Bork and Thomas with a sense that they had the filibuster in their procedural toolbox.

In 2005, early in Bush’s second term, Republican Senate Majority Leader Bill Frist proposed to change the supermajority requirement for cloture on nominations (then at 60 votes) to a simple majority, an idea known as the “nuclear option,” which would have effectively ended judicial filibusters. Democratic Minority Leader Harry Reid threatened to retaliate with an unprecedented level of obstructionism that would freeze most Senate business. This scenario did not play out after a compromise, engineered by the “Gang of 14,” derailed any change to cloture.

Eight years later, however, Reid was majority leader, and with the shoe on the other foot, he orchestrated by parliamentary maneuver the very rule change that had once evoked his threats of senatorial Armageddon, essentially ending the filibuster for all nominations other than for the Supreme Court in 2013.

Unprecedented Partisanship During the Trump Era

Gorsuch Filibuster

That exception for filibusters on Supreme Court nominations was quickly put to the test after Donald Trump became president in 2017 and Democrats launched a filibuster of the new president’s first judicial nominee to reach the floor, Neil Gorsuch. Thanks to Reid’s handiwork in 2013, Majority Leader Mitch McConnell garnered support for adding Supreme Court nominations to the others that were subject to simple majorities to invoke cloture.

Abuse of Cloture Motions

Although Democrats were in the minority in the Senate throughout Trump’s term, they used the tools in their arsenal more than any Senate minority before them. While the simple majority threshold made it easier than before to invoke cloture, even when a cloture motion succeeded, a confirmation vote was not immediate but subject to a limit of 30 hours of further consideration.

That time notoriously went by with little-to-no actual debate on the nomination at issue, but of course, actual deliberation was not the goal. By forcing votes on cloture, Democrats could take up more of the Senate’s time and make it that much more difficult to process nominations, not to mention other business.

This the Democratic minority did indiscriminately. All three of Trump’s Supreme Court nominees — Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were subjected to cloture votes. Adding Samuel Alito (a George W. Bush appointee) to those three, four of the six sitting Republican-appointed justices have faced cloture votes, in contrast to all four of the justices nominated by Presidents Bill Clinton and Barack Obama.

Senate Democrats have also regularly forced cloture votes for even noncontroversial nominees to circuit courts, district courts, and even the non-life-tenured courts of federal claims. Eight district court nominees who had previously been nominated by Obama before Trump renominated them were subjected to cloture votes despite a lack of meaningful opposition; five of them received between 95 and 100 votes for confirmation and zero against, and another was confirmed by a voice vote.

It was only after the cloture rule was broadened in 1949, during Harry Truman’s presidency, to cover any pending matter that nominations could be subject to a cloture motion. Since then, there were a total of 136 cloture votes on judicial nominees through the end of the Obama administration. Trump’s nominees have considerably more than that entire total, at 192 and counting.

The Disintegration of Bipartisanship

The bipartisanship that used to attend most judicial nominations is also falling apart. According to the Heritage Foundation, more confirmed judges received more than 30 percent opposition votes during the Trump administration than during all previous administrations combined, from George Washington to Obama. Moreover, the majority of negative votes cast against judicial nominees in American history were against Trump nominees.

The three Trump-appointed Supreme Court justices were confirmed with almost total Democratic opposition. Only three Democrats voted to confirm Gorsuch, one to confirm Kavanaugh, and none to confirm Barrett, making her the first Supreme Court nominee to be confirmed without any votes from a major minority party since 1869.

In Kavanaugh’s case, Democrats employed kitchen-sink tactics of obstruction that included repeated interruptions during his hearings and deluging him with more written questions for the record than the combined number of such questions to prior Supreme Court nominees in American history. All other tactics were eclipsed by the disgraceful last-minute attempt to destroy Kavanaugh, when Christine Blasey Ford’s sexual-assault allegation, after being buried for six weeks by ranking member Sen. Dianne Feinstein, was sprung on the committee after the initial hearings, a desperate tactic that flouted the process for handling sensitive matters.

Weaponization of the Blue Slip

On top of everything else, Democrats tried, in the words of long-serving Senate Judiciary Committee member (and former chairman) Orrin Hatch, to “weaponize the blue slip” tradition for circuit and district courts. That was the courtesy established in approximately 1917 in which a nominee’s home-state senators receive blue pieces of paper on which they could express their views about the nomination to the committee. It was a tradition (as opposed to a rule) intended to encourage pre-nomination consultation, but Democrats during this administration routinely withheld positive blue slips, especially for circuit nominees, as a workaround in the absence of a true filibuster.

“Today, Democrats are trying to turn the blue-slip process into a de facto filibuster,” Hatch charged in 2017. “They want a single senator to be able to do in the Judiciary Committee what it once took 41 senators to do on the Senate floor.”

Sen. Chuck Grassley, who chaired the committee during the first two years of the Trump administration, noted that only two of 19 Judiciary Committee chairmen who served over the span of a century treated the blue slip as a strict veto that would preclude a hearing in the absence of two positive blue slips, and he was not going to allow Democratic obstructionism to prevent him from proceeding with hearings for circuit nominees. Still, the blue slip has impeded the advancement of district court nominations through committee, and many trial court judgeships in states with Democratic senators remain vacant due to the withholding of blue slips or the threat of doing so.

It is thanks to current Republican leadership in the Senate and specifically the Judiciary Committee that so many nominees have been processed and made their way to confirmation. As the repeated operation of the 30-hour rule took its toll on nominations, McConnell garnered a majority to reduce the post-cloture clock to two hours for district court nominations.

To date, the Senate has confirmed 229 Article III (life-tenured) judges nominated by Trump. That total includes 53 circuit court judges, which ranks second among all four-year presidential terms to that of Jimmy Carter, who, boosted by the creation of 35 new seats on the courts of appeals in 1978, holds the record at 56. For several months this year, there was no room for Trump to increase his appointments to the courts of appeals because every vacancy had been filled.

Historical Support for Lame-Duck Confirmations

There are now two more appellate nominees, Thomas L. Kirsch II for Barrett’s former seat on the Seventh Circuit and Raúl M. Arias-Marxuach to fill the First Circuit vacancy created by the death of Juan Torruella on Oct. 26. There is no reason they cannot be confirmed before Inauguration Day. Kirsch already had his hearing before the Judiciary Committee, as have 11 pending nominees to district or federal claims courts.

While any nomination that is not processed by Jan. 3, the end of the current congressional term and beginning of the next, is automatically returned to the president, it can be resubmitted and processed without the need for a new hearing. There is ample precedent for lame-duck judicial confirmations, from John Adams’ appointment of John Marshall as chief justice after his re-election defeat, to Carter’s appointment of Breyer to the First Circuit after his loss to Ronald Reagan.

There is an unmistakable dissonance between Joe Biden’s calls for national unity and his party’s judicial obstructionism over the past four years. As a Judiciary Committee chairman, Biden helped to lay much of the groundwork for this sorry state of affairs. For his Democratic successors in the Senate, obstructionism is an ongoing project that seems to find no limit.

Consider the exception that proved the rule: When leftist interest groups criticized Feinstein after she praised Graham’s handling of Barrett’s Supreme Court nomination hearings and gave the chairman a hug — never mind that every Democrat voted against the nominee — Feinstein’s party compelled her to step down as the Judiciary Committee’s top Democrat. Is there any level of malevolence toward judicial nominations that would satisfy today’s Democratic leadership?

Frank Scaturro served as counsel for the Constitution on the staff of the Senate Judiciary Committee between 2005 and 2009, in which capacity he worked on the nominations of John Roberts and Samuel Alito to the Supreme Court and Neil Gorsuch to the Tenth Circuit. He is the author of, among other titles, “The Supreme Court’s Retreat from Reconstruction” (Greenwood Press, 2000). Follow him on Twitter at @FrankScaturro.

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