WASHINGTON (CN) — It was business as usual Wednesday for the Senate Judiciary Committee, as the committee met to consider the latest group of the White House’s federal court nominees amid Republican headwinds.
Convening for the first time since Congress took its August recess, the Senate legal panel started strong with testimony from two circuit court appointments: Richard Federico of Kansas, tapped by the Biden administration to fill a vacancy on the Tenth Circuit, and Joshua Kolar of Indiana, selected to join the bench on the Seventh Circuit.
Kolar currently serves as a magistrate judge on the U.S District Court for the Northern District of Indiana. Federico is a federal public defender and a captain in the U.S. Navy reserves.
The committee also questioned nominees for U.S. district courts in Minnesota and California, as well as the administration’s pick to become the Executive Office of the President’s intellectual property enforcement coordinator.
Both circuit court nominees had received endorsements from their Republican home state senators in a process known as blue slipping. Illinois Democrat Dick Durbin, who chairs the judiciary committee, held up the appointments as examples of bipartisan cooperation in advancing President Biden’s judicial agenda.
“I want to thank the senators from Kansas and Indiana for continuing to work with the White House in good faith to fill judicial vacancies in their states on a bipartisan basis,” Durbin said.
The Illinois Democrat, who has long pointed to the blue slipping process as an effective tool for bipartisanship, pushed back on critics of the system who say it is prone to abuse by lawmakers seeking to withhold support for nominees they don’t want confirmed.
Although blue slips have been abused in the past, there is evidence that the process has some utility if used the right way, Durbin said. “These senators and the White House counsel’s office have shown that this process can work if people of good will meet together and do their best.”
South Carolina Republican Lindsey Graham, the judiciary committee’s ranking member, said he was also looking for ways to work across the aisle to advance judicial nominees.
“It’s very heartening to see our Republican and Democratic colleagues working together on circuit nominations,” Graham said. “I’m trying to find a way to work with my Democratic colleagues on appointments. They won the election, and that comes with winning. I think we’ve done a pretty good job.”
Those apparent bipartisan good feelings quickly melted away as Republican lawmakers took aim at the circuit court nominees.
Louisiana Senator John Kennedy, who regularly asks pointed questions of Democratic appointees, needled Federico and Kolar on their personal beliefs.
Kennedy repeatedly asked the circuit court nominees whether they believed “minorities need special help to achieve,” seemingly alluding to the Supreme Court's June ruling that struck down affirmative action programs for university admissions.
Both nominees, aiming to present themselves as impartial arbiters of the law, were wary to directly answer Kennedy’s line of questioning — a tactic that on more than one occasion resulted in a tense exchange. Kolar in particular sought to distance his personal beliefs from his work as a jurist. “I think that question is one that the courts will struggle with,” he said before the Louisiana Republican cut him off.
Committee Democrats were less than enthused by Kennedy’s attempt to drag the nominees into a discussion about personal beliefs.
“The nominees are instructed, and properly don’t answer questions about their personal feelings,” Durbin fired back at his Republican colleague. “They’re supposed to apply the law as established to the facts that are brought before them … and professionally, they’re doing the right thing.”
California Senator Alex Padilla also criticized Kennedy for the framing of his question. “Let’s not obfuscate equal treatment and equal opportunity with special treatment,” Padilla said.
Other Republicans on the panel took aim at Kolar’s record as a jurist.
Tennessee Senator Marsha Blackburn dug into the Seventh Circuit nominee on a 2019 decision to release a defendant facing a litany of charges, including bank fraud and identity theft, pending trial.
Blackburn sought to paint Kolar’s decision as part of what she framed as “the fact the prosecutors will not prosecute and that judges will not sentence people.”
Kolar told the Tennessee Republican that his ruling was dictated by the Bail Reform Act, which sets conditions about when defendants should be released pretrial.
“I’m bound by the Bail Reform Act that was passed by this body,” he said. “I had to make a decision without briefs and without a good deal of case law in a quick circumstance.”
Missouri Senator Josh Hawley pressed Federico on his public defense work, pointing to a 2018 case in which he represented a Kansas man charged with the distribution of child pornography. The lawmaker cast aspersions on the nominee’s effort to reduce his client’s sentence.
“I get that you want to defend your client, sure,” Hawley said, but he added that the sentence Federico advocated for was about half that suggested by the prosecution. “Do you think that’s a sentence that does justice to his victims?”
Federico noted in response that he had been appointed by the court to represent that defendant. He pointed out that the ultimate sentencing decision lay with the district judge.
“When I am court-appointed to represent someone, it’s not a personal endorsement upon their conduct,” Federico said.
Despite the partisan squabbling, at least one expert said Wednesday that things were looking good for both circuit court nominees.
“Kolar and Federico brought valuable legal service in the military and federal court system,” said Carl Tobias, chair of the University of Richmond School of Law. “Both were clear and comprehensive and showed great knowledge and temperament, especially in answering difficult, and sometimes tricky, questions from GOP senators.”
Both nominees enjoyed blue slip support, Tobias pointed out, and he projected that both would be confirmed this year on a bipartisan basis.
The Senate is beginning to chip away at an enormous backlog of judicial appointments awaiting approval from the upper chamber. The slow pace of nominees coming from the White House and delayed floor votes are contributing to the bottleneck.
The holdup has seen the Biden administration confirm just 140 federal judges since the president took office — roughly half as many as the Senate greenlit under former President Donald Trump.
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