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Friday, 08 December 2017 06:18

Senate Republicans Pack the Courts by Flouting Traditions

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fedcourtatlantaU.S. District Court of Appeals, Atlanta (Photo: Steven Martin)

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BuzzFlash has long covered the way in which Republican senators are more aggressive than Democrats in shaping the judiciary to achieve partisan goals. It is a subject that necessitates ongoing examination, because the GOP is resolute in attaining its objective of a right-wing federal court.

The latest flouting of Senate tradition and rules concerns a process used by both parties to delay federal judiciary nominations. It is a somewhat arcane procedure known as "blue slipping" nominees. Senators of states where nominees would serve have long been able to prevent or delay Senate Judiciary Committee hearings by simply withholding a blue slip with the name of the person under consideration from being submitted to the Senate Judiciary Committee chairperson. Whether one agrees with the procedure or not, what's important to note is that the Republicans have used the option frequently to prevent Democratic nominees to the federal bench over the years.

In a recent email from People for the American Way, the progressive advocacy organization noted that in November,

[Republican] Senate Judiciary Chairman Chuck Grassley announced he was going to move forward with scheduling a hearing for an extreme Trump judicial nominee -- one who is on Trump’s list for possible Supreme Court justices -- despite the fact that he has not received approval from both home-state senators for going forward. Although he adamantly supported the tradition requiring approval from both home-state senators when it came to stopping President Obama’s nominees from moving forward, Grassley is more than happy to throw them out when it comes to moving Trump’s nominees forward. Obliterating more than 100 years of Senate traditions, and in the face of his own promises not to do so, he has now scheduled the hearing for judicial nominee David Stras.

Stras is one of the judges on Trump’s list of potential Supreme Court nominees -- and a commitment to overturning Roe v. Wade is a requirement for anyone on that list. As a state Supreme Court justice, David Stras has ruled against the rights of children with disabilities, sexual assault survivors, and workers discriminated against on the job.

In a December 4 Rewire article about the change in longstanding Senate policy, Imani Gandy and Jessica Mason Pieklo write,

During the Obama golden years...Republican senators refused to turn in their blue slips, thus stalling the nominations of dozens of the president’s picks. Democrats basically accepted this as the way things work in Washington. They did a lot of finger wagging and gnashing of teeth, but not much in the way of pushing nominees through.

But suddenly, now that the GOP is in control of the three branches of government, all those checks and balances in place to ensure that the president can’t just appoint whomever he wants to the bench are as nonexistent as Republican concerns over Russia owning Trump.

The Republican recalcitrance to confirming Obama appointees created an excessive number of vacancies on the courts. This enabled the GOP to rush to fill these federal bench judicial positions with Trump appointees.

To add to the hypocrisy, remember that Senate Majority Leader Mitch McConnell and his caucus wouldn't vote on replacing deceased Supreme Court Justice Antonin Scalia with Merrick Garland, chief United States circuit judge of the United States Court of Appeals for the District of Columbia Circuit. In fact, they thwarted his nomination – despite his reputation as a moderate -- in the last year of the Obama administration. The majority of Republicans did not even extend him a courtesy Senate office interview. This hardball move by Senate Republicans set up the eventual confirmation of Neil M. Gorsuch to the Supreme Court, preserving the seat as a right-wing one.

In an email newsletter from Progress Report, the Grassley action was put in context:

Senate Republicans are quietly fast tracking President Trump’s judicial appointments, made up almost exclusively of white males. With five district court appointees and eight appeals court nominees already confirmed, the Senate is already confirming Trump’s nominees at a breakneck pace....

Brett Talley, a lawyer at the Department of Justice, was nominated for a federal district court judgeship in Alabama, even though he has never tried a case and failed to disclose that he was the husband of the White House counsel’s chief of staff and that he had previously praised the KKK. If confirmed, this 36-year-old man will serve a lifetime appointment.

The Trump White House and the Republicans understand that if they appoint young judges, they can influence the federal bench for decades to come.

Yes, withholding blue slips may appear to be an archaic Senate practice, but it wasn't objectionable to Republicans who used it freely until it became an impediment to packing the bench under Trump.