opinion

‘Beyond Comprehension’

Donald Trump Cries Obstruction as He Transforms the Federal Courts

Because of Republican obstructionism under Obama, this president has far more vacancies to fill—and he’s doing so quickly, with sometime outrageous nominees.

President Donald Trump has little patience for the workings of democracy.

He cries that Democrats are obstructing his judicial nominations—“the Democrats are holding them up beyond anything. Beyond comprehension, they’re holding them up,” he said of “some of the most qualified people ever, and they’re waiting forever on line”—and that Senate Republicans should thus use their slim majority to scrap blue slips, the longstanding bipartisan tradition in which home state senators sign off on nominees, to speed his nominees through.

But in fact Trump has been nominating judges at a fast clip, and so far he’s gotten seven judicial nominees confirmed out of the 57 whose names he’s put forward. President Obama had just three judges confirmed by this point in 2009, and his party, too, controlled the Senate.

Trump has about 150 judicial vacancies to fill, many more than previous presidents, in part because the last Senate, led by Republican Mitch McConnell, deliberately held open vacancies while Obama was in office—including the Supreme Court seat now held by Neil Gorsuch after Republicans refused to even hold a hearing for Obama’s highly regarded nominee, Merrick Garland.

Those 150 vacancies include 21 on the next highest court, the Court of Appeals, enough to shift power to the right, particularly on cultural issues.

With Republicans needing just 51 votes to win confirmation, Democrats have been unnerved and so far powerless to stop a steady stream of judicial nominees—many with glaring deficiencies—sanctioned by the conservative Federalist Society and promoted by the right-wing activist group Judicial Crisis Network, win lifetime appointments.

“The Republicans have no gag reflex whatsoever,” Sen. Sheldon Whitehouse (D-RI), a member of the Judiciary Committee, told The Daily Beast. “They will wave anybody through.”

Whitehouse cited Jeff Mateer, Trump’s nominee for a seat on the U.S. District Court for the Eastern District of Texas. He has called transgender children part of “Satan’s plan,” and argued that same-sex marriage is a slippery slope to polygamy and bestiality. Mateer, a senior attorney in the Texas Attorney General’s Office, made these remarks when he was the general counsel of the First Liberty Institute, a religious advocacy group. In a 2015 speech, he said the Supreme Court’s decision sanctioning same-sex marriage could lead to “disgusting” forms of matrimony.

“I get the impression that the Federalist Society is running the show,” says Russell Wheeler, a visiting fellow at the Brookings Institution and an expert on the judiciary. “The party of the incumbent president is a fairly reliable indicator how these judges will rule, and we’re going to see particularly in the Court of Appeals more conservative decisions.”

Appeals court judges have more freedom to operate and are less bound by precedent, notes Wheeler, who cites cases involving gender, same-sex marriage, LGBT rights, and the environment as areas where Trump-appointed conservative judges could have the greatest effect.

Countering Trump’s complaints, California Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee, notes more than half of this year’s circuit court nominees who have had hearings had blue slips returned by Democratic senators, and that Obama’s first four circuit court nominees waited an average of 213 days from nomination to confirmation, compared to 84 days for Trump.  “Democrats are doing their due diligence in vetting the president’s nominees. There’s been no obstruction that justifies the effort to end the 100-year-old blue-slip process.”

Democratic senators in two states, Minnesota and Oregon, did not return their blue slips, potentially blocking two Trump judges. Republican Charles Grassley, who chairs the Senate Judiciary Committee, rather than end the blue-slip tradition, may try to invoke “exceptions” rather than bow to Trump’s wishes and abandon the practice altogether.

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When Democrats controlled the Senate, blue slips were considered so sacred then even Democratic leader Harry Reid couldn’t get a judge confirmed from his home state of Nevada when Nevada’s Republican Sen. Dean Heller wouldn’t return his blue slip. Now, McConnell says that the blue slip will be treated as “notification” of how a senator will vote, “and not an opportunity to blackball.”

Process and procedure aside, who are these judicial nominees that Trump wants so badly? The worst of the worst couldn’t be stopped by a blue slip anyway. A sampling:

  • Brett Talley, to the U.S. District Court for the Middle District of Alabama, had his hearing Tuesday before the Senate Judiciary Committee, where Feinstein noted that the American Bar Association (ABA) had not completed its evaluation. “The fact that the ABA has concerns is not surprising,” Feinstein said, noting Talley’s scant legal record. He graduated from law school 10 years ago, and in his Senate questionnaire, stated, ‘I have not tried a case.’” He has a record as a provocative blogger who, in the wake of the Sandy Hook massacre of 20 first-graders, served as an effective mouthpiece for the NRA. He said President Obama and his allies in Congress “are about to launch the greatest attack on our constitutional freedoms in our lifetime.” He wrote that if one of the teachers had been armed, “more children would be alive today.” Feinstein said that even more concerning than Talley’s views on guns, “I’m also concerned about his temperament and lack of experience.” 

  • Greg Katsas, to the U.S. Court of Appeals for the D.C. Circuit, is an experienced lawyer who has argued in every appellate court in the country. For the last 10 months, he’s been working for President Trump as a deputy in the White House Counsel’s Office, “which raises questions about his independence,” Feinstein said at Tuesday’s hearing. She noted that his tenure at the White House overlaps with several active investigations, including the one led by special counsel Robert Mueller. In questioning, she got him to admit his involvement with the president’s travel ban, the Election Integrity Commission, and DACA deliberations. “His fingerprint is on some of the most troubling aspects of this administration,” says Daniel Goldberg, legal director with the Alliance for Justice. Katsas was a senior official in the Bush Justice Department, and when Democrat Dick Durbin asked if he thinks waterboarding is torture, Katsas would not give a yes or no answer.

  • Thomas Alvin Farr, to the U.S. District Court for the Eastern District of North Carolina, is the go-to private attorney in the state’s numerous efforts to restrict voting rights for communities of color. The Congressional Black Caucus said, “It is no exaggeration to say that had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African-American voting rights and workers’ rights… it could hardly have done so.” The seat Farr is nominated for is the longest vacancy in the country. Obama nominated two highly qualified black women. Republican Sen. Richard Burr blocked both women by withholding his blue slip. Farr was nominated to the federal bench twice before by George W. Bush, but didn’t make it out of the Senate Judiciary Committee. Farr cleared the committee in a party line vote on Thursday, advancing his nomination.