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Wednesday, March 27, 2024 | Back issues
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When nominating judges gets more political, filling seats requires strategy

Presidents are increasingly avoiding filling vacancies in states held by the opposition party during their first year in office.

WASHINGTON (CN)  — A Sixth Circuit nominee's appearance at the Senate Judiciary Committee in mid-January was a doozy.

It wasn’t just Andre Mathis’ three traffic tickets that irked Senator Marsha Blackburn, who dubbed Mathis' traffic citations a “rap sheet,” but the fact that the White House had largely ignored her and fellow Tennessee Republican Bill Hagerty’s opinions about the nominee hailing from their state. 

While presidents have traditionally sought agreement from home-state senators in the form of a “blue slip” of approval to move forward with federal judicial nominees, this collegial process for circuit court nominees was nixed during the Trump administration, a change that has exacerbated judicial nominations as political flashpoints.

“I do see it as a breach of constitutional norms," Blackburn said of Democrats following Republicans' lead and ignoring the blue slip for Mathis' nomination.

This moment of tension during Mathis’ hearing exemplified a scenario that presidents, including Joe Biden, have increasingly avoided confronting during their first year in office — nominations to courts in states with senators of the opposite party.

Of Biden’s 13 nominations to circuit courts during his first year, 11 were to states represented by two Democrats or no senators, mirrored by 94% of his district court nominations going to states with two Democratic senators, according to analysis by Russell Wheeler, a visiting fellow of governance studies at the Brookings Institution.

Since the Reagan administration, presidents have increasingly avoided filling circuit and district court vacancies in states with opposition-party senators early on in their terms as what once was a fairly civil process has morphed into a partisan battleground.

One-third of Reagan’s first-year circuit court nominations were to states with no opposition-party senators, rising to 53% for Trump and 85% of Biden’s picks during his first year in office, according to Wheeler’s research.

The Evolution of Nomination Politics

It was a long-held custom in the earliest iterations of the Senate to rely on home-state senators to pick federal court nominees in their states, a tradition that gave birth to the blue slip in the early 1900s. 

Typically, this deference was given to home-state senators of the president’s party, with opposition-party senators largely deferring to the president when it came to nominations in their state.

“The minority would say, ‘Well, the president won the election so he gets to pick judges, and we'll defer to that unless they're terribly out of line, and we expect the same thing from our colleagues on the other side, once we have someone in the White House,'” Wheeler said.

The blue slip evolved as a way for home-state senators regardless of party affiliation to make their opinions on a nominee known. Back then, however, the parties were not deeply ideologically divided when it came to judicial nominees, and opposition party senators sometimes returned positive blue slips even for nominees they may not have preferred.

The judicial nomination process simply wasn’t seen as a zero-sum game.

“During this time, sort of pre-Reagan, getting a federal court of appeals judgeship was sort of a patronage job almost. There was less of a focus on inequality [in nominations] because the parties weren't that different ideologically. And so, you would basically use the blue slip as a mechanism that would give the home-state senators power. Because there wasn't really a focus on ideology, if you were a Democrat, you didn't mind so much a Republican having blue slip power and vice versa,” said Neal Devins, professor of law and government at William and Mary Law School.

That changed during the era of Ronald Reagan, when the trend of Republican presidents nominating conservative judges and Democrats pushing for liberal nominees began to emerge, with the courts as a new stage for political battles over ideology, criminal justice and the Constitution.

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“The whole thing, it's just gotten much more polarized. So that kind of comity doesn't reign as much anymore. And secondly, this whole idea of deference to home-state senators has changed because home-state senators have become more aggressive in asserting their prerogative to control judicial nominations from their state,” Wheeler said.

Judicial nominations became an even more divisive issue during the tenure of former President Barack Obama, when Mitch McConnell, minority leader later turned majority leader, united Republicans behind filibustering and refusing to turn in blue slips for Obama nominees. 

Democrats had invoked the filibuster throughout George W. Bush’s presidency, but the president’s ability to get judges on the federal bench slowed to a crawl under Obama. 

Despite Democrats eliminating the filibuster for federal court nominees to speed up confirmations in 2013, a mere 26.8% of Obama’s nominees were confirmed during his last two years in office, according to the Congressional Research Service.

This opened the door for Donald Trump to begin his presidency with an onslaught of federal court nominations, and laid the groundwork for presidents to become increasingly strategic about how to navigate judicial nominations, especially to states where opposite party senators have sway.

“We've gone from a situation in which senators of the president's party, if they have any in the home state, could pretty well dictate the district nomination and have some say in the court of appeals nomination to, during the Obama administration, a situation in which senators of either party could kill a nomination, making it imperative on the White House to nominate someone they wouldn't kill,” Wheeler said.

Senator Marsha Blackburn, a Republican from Tennessee, speaks during a Senate Judiciary Committee meeting on Jan. 12, 2022. (Screenshot via Courthouse News)

Avoiding Acrimony

With full-throated condemnations of judicial nominees as the latest tactic for members of the opposition party to criticize presidents and prevent the executive from snagging a political win, presidents in their first year in office have increasingly avoided filling vacancies in states held by opposition-party senators.

Devins said this strategy is simply a matter of attempting to skirt political hostility early on in a presidency because, even though the blue slip no longer exists for circuit court nominations, Blackburn’s condemnations of Mathis reveal the political landmines that still come when presidents forge ahead with nominees without home-state approval.

“In some sense, not going forward is more a function of avoiding acrimony and taking the path of least resistance. But today, the blue slip is not an insurmountable roadblock, as it was before,” Devins said.

While Biden has filled several district court vacancies in states with split delegations, one Democrat and one Republican senator, these states, such as Ohio, often have bipartisan vetting committees where the senators cooperate on who to recommend to the president as a nominee, alleviating partisan pressures.

Biden has yet to nominate anyone to a district court in a state held entirely by Republicans.

“The harder question is what to do when you've got two Republican senators who are not cooperating. Those are going to be tough and I think that probably the White House before the midterms is not going to spend a lot of energy on that, and that’s just pragmatic,” Tobias said.

There are some indications that Biden’s second year in office might carry with it some cooperation from Republicans on district court nominees.

Republican Senators Mike Crapo and Jim Risch of Idaho said they are in talks with the White House about filling a vacancy in their state's district court.

“The White House and Sen. Risch and I will work together to find a candidate whom we all can accept,” Crapo told the Idaho Press late last month.

The Implications of Inside Baseball

Experts are divided over whether this trend in nominations has any impact beyond presidents largely avoiding political resistance over nominees in their first year.

“I think it would be tragic, if not horrific, if that became the norm. Just because it's not good for the president, it’s not good for the Senate, it’s not good for federal courts. Because it just makes it look more partisan, more politicized. And that's the last thing you want to do in terms of making the government work and making the processes work. So, I think it's a huge mistake and there's plenty of blame to go around,”  said Carl Tobias, a professor at the University of Richmond Law School.

Legitimacy has become the latest buzzword for watchers of the federal courts, with some, like Tobias, concerned that even tactics by the president regarding nominations can play negatively into an already broiling debate about whether federal judges are insulated from partisan infighting or mere political actors.

But Wheeler said this approach by presidents, including Biden, is simply a new means of navigating a political process that has changed in recent years.

“This is inside baseball. I don't think most people picked up on the fact that he nominated mainly to states with Democratic senators. I don't think perceptions of the judicial system and that kind of stuff, I don't think that enters into it at all. I mean, except for people who think somehow judges come in by way of the stork, you know, as opposed to the political process,” Wheeler said.

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