Senators Want President Trump to Re-Nominate their Judicial Nominees

Both Democrats and Republicans think the president should select nominees who never got a vote in the last session of Congress.

On April 26, the Senate Judiciary Committee will hold its first hearing on one of President Trump’s lower court nominees — Amul Thapar, whom Trump nominated to serve on the U.S. Court of Appeals for the Sixth Circuit. President Obama had also nominated someone to that seat — Kentucky Supreme Court Justice Lisabeth T. Hughes — who would have been the first woman from Kentucky on the Sixth Circuit. Hughes was nominated in March 2016, but never received a committee hearing because Senate Majority Leader Mitch McConnell, who is a Republican senator from Kentucky, never returned his blue slip to indicate his approval.

If you don’t live in the Eastern District of Kentucky (where Thapar has been a federal judge for the past decade) and his name still sounds familiar, it’s because he was one of Trump’s finalists for the U.S. Supreme Court seat that Neil Gorsuch just filled. But Trump — who has more than a hundred lower court vacancies to fill — can’t nominate exclusively from his list of 21 Supreme Court picks. Senators from both parties have another list they want Trump to consider: The nominations that were sent back to the White House at the end of the 114th session of Congress.

Susan Baxter, for example, is a federal magistrate judge who was nominated in September 2015 to fill a vacancy on the U.S. District Court for the Western District of Pennsylvania, but her nomination languished for nearly a year on the Senate floor before Trump became president. In March 2016, Kathleen Sweet was nominated to fill a judicial emergency in the Western District of New York. A month later, David Nye was nominated to fill another emergency vacancy in Idaho.

These judicial nominees were all unanimously approved by the Senate Judiciary Committee, but none received a vote on the Senate floor before their nominations expired. Now, their home-state senators want Trump to re-nominate them.

“Sen. Toomey believes it is crucial to place a sitting judge at the federal courthouse in Erie, which has remained vacant for years,” his spokesman said in February. “He believes that Judge Baxter has the intellect, experience and integrity to serve as a federal judge.” A spokesman for Minority Leader Schumer said of Sweet that “Sen. Schumer continues to support her candidacy.” And a spokesman for Sen. Mike Crapo, who now sits on the Senate Judiciary Committee, said earlier this year that “We’re really going to work hard on Nye.” In fact, every senator with nominations pending on the floor wanted their nominees confirmed in the last session of Congress, including all 16 Republican senators with nominees. In total, 25 nominees were left stranded on the floor — nearly all approved unanimously by the committee.

The situation is dire in Idaho, as explained in the Spokesman Review in November 2016:

“Idaho has been down to just one active federal U.S. district judge since July of 2015, when longtime District Judge Edward Lodge took senior status, a move he’d first announced in September of 2014. The federal court system has declared a judicial emergency in Idaho due to the shortage of judges, and Idaho has been tapping out-of-state judges to hear Idaho cases. In addition, Lodge, 82, who intended to reduce his caseload when he took senior status, still is hearing cases.”

Crapo and Idaho’s other Republican senator, James Risch, actually want a third federal judgeship created in Idaho because of the state’s population growth and caseload.

It didn’t have to be this way. When Sen. Patrick Leahy, D. Vt., was chair of the Senate Judiciary Committee in September 2008, he held two hearings that month for 10 nominees. All 10 nominees were confirmed on one day later that month. As Leahy noted in September 2016, “After those confirmations, not a single nominee was left on the Executive Calendar before the election. There is no good reason we cannot do for these nominees this September what I did for President Bush’s judicial nominees eight years ago.”

That argument was not persuasive to McConnell, who permitted the final confirmation vote on a lower court nominee of the 114th Congress in July 2016.

It’s not just nominees who were pending on the Senate floor: Senators who had nominees pending in the Senate Judiciary Committee would also like to see their nominees re-nominated. In Florida, Sens. Bill Nelson, a Democrat, and Marco Rubio, a Republican, want their three nominees to the Northern and Middle Districts re-nominated by Trump. In Washington, Sens. Patty Murray and Maria Cantwell want the president to choose from nominees put forward last April by a bipartisan judicial selection committee comprised of three Democrats and three Republicans. Obama nominated three of the committee’s five picks to the Western District of Washington, and Murray and Cantwell, both Democrats, want the same list used this time around.

Re-nominating these judges who already have the support of their home-state senators is the quickest way to start filling the federal bench. Nominees who have already been vetted, including by the Senate Judiciary Committee, would simply need to be re-approved by the committee and then confirmed on the floor.

And there’s certainly precedent for re-nominating.

In March 2009, all 41 Senate Republicans wrote a letter to President Obama about the judicial nominations process. “First, in the beginning of his Administration, your predecessor demonstrated his desire to improve the judicial confirmation process by nominating to the circuit courts two of President Clinton’s previous judicial nominees, Judge Barrington Parker to the Second Circuit Court of Appeals, and Judge Roger Gregory to the Fourth Circuit Court of Appeals,” the Senate Republicans noted to Obama. “It would help change the tone in Washington if your Administration would take the same bipartisan step.”

“We hope your Administration will consult with us as it considers possible nominations to the federal courts from our states,” they added later in the letter, whose signatories included Sen. Chuck Grassley, now-Chair of the Judiciary Committee, and McConnell, now-Senate Majority Leader.

Obama did work closely with Republican senators to fill judicial vacancies, and Chairman Leahy, without exception, required that both home-state senators return their blue slips before moving forward on any lower court nominee. He even did this against the wishes of then-Senate Majority Leader Harry Reid, D. Nev., when Sen. Dean Heller, R. Nev., refused to return his blue slip for a district court nominee named Elissa Cadish.

“Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation,” the Republicans wrote in 2009. Eight years later, Senate Democrats will be hoping for that same courtesy as Trump prepares to fill more than a hundred judicial vacancies. Re-nominating people who already have support of their home-state senators would be a great place to start.