Checklist for the Chairman: A Plea to Protect Our Courts
An Open Letter to Senate Judiciary Committee Chairman Lindsey Graham
By Mike Zubrensky
Dear Senator Graham,
You have just become chair of the Senate Judiciary Committee, which is charged with reviewing judicial nominees for lifetime appointments and key executive branch appointees like the attorney general. The committee has become highly politicized in recent years under the acrimonious chairmanship of Senator Chuck Grassley. You have the power to restore the committee’s spirit of integrity and independence, and you owe it to your country, the Constitution, and the federal judiciary to do so.
You have broader duties than mere allegiance to your political party, and you have demonstrated the ability to work with members across the aisle in the past. As an attorney, you understand the value of depoliticizing the federal bench and of the need for bipartisanship, professional standards, and fair rules in the consideration of judicial nominees. You were one of the few Republican senators to vote to confirm President Obama’s highly qualified Supreme Court nominees Elena Kagan and Sonia Sotomayor, and you have been a voice of reason and independence on some significant policy matters.
As chair of the Senate Judiciary Committee, you must lead with these qualities in order to honor your oath to protect the Constitution and defend the Senate’s independent constitutional role in vetting judicial nominees. Here are five recommendations for doing so.
1. Restore the Senate’s “blue slip” tradition.
You must restore the traditional role of home-state senators in the judicial confirmation process and the integrity of the blue slip process. Senator Grassley firmly upheld the Senate’s century-old blue slip policy during the Obama presidency, not allowing a single Obama judicial nominee to receive a committee hearing or vote unless both of their home-state senators returned the blue slip signaling support for the nominee. Yet he hypocritically reversed that policy and allowed eight of Trump’s extreme circuit court nominees to receive a hearing and vote despite the objections of one or both home-state senators.
The blue slip practice is one of the critical checks and balances that protects the Senate’s role and maintains equilibrium among the branches of government. Historically, when the Senate majority placed partisan loyalty over the Senate’s institutional duty of independence, the blue slip served as a vital corrective. As former Senator Hatch noted in 2014:
“Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power. Anyone serious about the Senate’s ‘advice and consent’ role knows how disastrous such a move would be.”
This process has never been more important than today, with a sitting president who undermines the legitimacy of judges who disagree with his actions, and who prioritizes personal loyalty over fealty to the law.
2. Respect the role of the American Bar Association (ABA).
You must value the ABA’s independent and nonpartisan role in evaluating judicial nominees. For more than 50 years, the ABA evaluated potential judicial candidates before a nomination was made to weed out those who lack the experience, integrity, or temperament to serve lifetime appointments. President Trump removed the ABA from the pre-nomination process in order to steamroll his nominees through the Senate without adequate vetting. Although the ABA still conducted evaluations after nominations were made, Senator Grassley rushed to schedule hearings for dozens of nominees before their ratings were complete. Six Trump nominees ultimately received the rare and abysmal rating of Not Qualified, the highest number of judicial nominees to earn this dishonorable distinction during the first two years of a presidency.
Senator Graham, you have expressed strong support for the ABA judicial evaluation role in the past. As you stated in your keynote address at the ABA’s annual convention in 2012: “That service you provide the United States Senate is invaluable because in these politically charged times in which we live, you are a filter, sort of a wall, between people who are politically connected and somebody who should be on the bench.” And in a recent tweet, you wrote: “If I am fortunate enough to be selected by my colleagues to serve as Chairman, I will push for the appointment and Senate confirmation of highly qualified (emphasis added) conservative judges to the federal bench.”
As chair of the Senate Judiciary Committee, you have the opportunity to put your words into action. You can do so by scheduling no hearings or votes until the ABA rating for a nominee is complete and by refusing to give hearings or votes to any nominee who receives a Not Qualified rating. The federal judiciary deserves judges who can at least attain the minimum qualification standard set by our nation’s largest legal organization.
3. Stop stacked hearings.
Because the Trump administration is inadequately vetting its judicial nominees, it is essential for the Senate Judiciary Committee to carefully scrutinize them. To allow enough time for committee members to review nominees’ extensive records, you must end Senator Grassley’s practice of stuffing multiple circuit court nominees into a single hearing unless the minority party consents to such a hearing. Stacked hearings occurred repeatedly during the first two years of Trump’s presidency. By contrast, during the eight-year Obama presidency, not a single hearing with more than one circuit court nominee took place unless the Republicans agreed. The tradition of having just one circuit court nominee per hearing exists because federal appellate courts are the second highest courts in the land. They make critical decisions involving tens of millions of people. They serve for decades if confirmed and are deserving of the Senate Judiciary Committee’s time, attention, and thorough examination. Stacked hearings undermine that critical function, and you should not permit them.
4. Stop recess hearings.
For the first time in Senate history, Senator Grassley held hearings for judicial nominees during a Senate recess over the minority party’s objection. He held two such hearings in October 2018 despite the absence of every committee Democrat and all but three committee Republicans. He held these hearings so that the two-year effort to pack the courts with President Trump’s judicial extremists would continue unabated. The reputation and integrity of the federal judiciary will suffer as a result of these hyper-partisan actions. You must reverse course and refrain from scheduling any recess hearings, and you should conduct new hearings for those nominees who were given recess hearings last October.
5. Permit full access to nominees’ records.
During the Kavanaugh confirmation process, Senator Grassley circumvented the traditional document production role played by the National Archives and prevented committee members and the public from accessing millions of pages of the nominee’s records from his service in the White House. These vital records on Judge Kavanaugh’s background and beliefs were never made public. This was in stark contrast to the Supreme Court nominations of Elena Kagan and John Roberts, who had also served in White House positions and whose records from that service were virtually all made public.
Senator Grassley also allowed lower court nominees to escape thorough scrutiny of their records. As part of the confirmation process, nominees must submit a questionnaire to the Senate that provides information about a nominee’s background and that requires nominees to provide past speeches and writings “including material published only on the Internet.” Trump judicial nominees have routinely failed to provide all such material, and Senator Grassley let them get away with it. For example, Alabama district court nominee Brett Talley, who became known more for his ghost hunting than legal skills (he was one of the six nominees rated Not Qualified by the ABA), failed to disclose more than 16,000 online posts, including one in which he defended the Ku Klux Klan. Senator Grassley gave Talley a hearing and committee vote, though fortunately he was never given a full Senate vote in light of the bad publicity.
Senator Grassley also permitted nominees such as Talley and Fifth Circuit nominee Don Willett to omit without consequence listing their Twitter messages, despite such writings clearly constituting “material published only on the Internet.” He also failed to allow the Senate Judiciary Committee to fully investigate the activities of some controversial nominees, such as the role played by North Carolina district court nominee Thomas Farr in intimidating Black voters during the 1990 Jesse Helms for Senate campaign. Senator Grassley ran roughshod over committee norms and traditions in order to shield Trump nominees from serious and complete scrutiny. You must put an end to that practice.
Taking these steps will be a critical way to reassert the Senate’s independent advice and consent function and to stop serving as a rubber stamp for President Trump in his bid to pack the courts with ideological extremists. The country, the Constitution, and our judiciary are counting on you.
With fingers crossed,
Mike Zubrensky is chief counsel at The Leadership Conference on Civil and Human Rights. During the Obama administration, he served as a deputy assistant attorney general and worked on judicial nominations for the Department of Justice.