Partisan push to take over the judiciary will diminish each Senator’s role in the end

Mitch McConnell (R) made his position crystal clear. “My view is, no one senator ought to be able to stop a circuit court judge,” the Senate majority leader told a radio host last Thursday, undermining decades of judicial nominations practice and reversing a position previously held by many Republicans. Left unchallenged, this partisan power-grab will spell long-term trouble for the Senate, our courts, and our democracy.

For the last century, the president’s required consultation has been enforced by a blue slip of paper given to the home state senators by the chair of the Senate Committee on the Judiciary. If a home state senator approves the judicial nomination made by the president, the blue slip is returned and the nomination proceeds to a hearing and possibly a committee vote and then possibly a full senate confirmation vote.

{mosads}Senate Republicans have aggressively backed this tradition. Sen. Orrin Hatch (R-Utah) in 2014 warned of the dangers in removing blue slips, underscoring that “anyone serious about the Senate’s ‘advice and consent’ role knows how disastrous such a move would be.” In a 2015 op-ed, Chairman of the Senate Judiciary Committee Charles Grassley (R-Iowa) vowed to honor and uphold the blue slip process as did his predecessor Senator Patrick Leahy (D-Vt.).  

During the Obama administration, Republicans regularly used the blue slip process and blocked 18 of President Obama’s judicial nominations. Sen. Ron Johnson (R-Wisc.) used the process in 2011 to block President Obama’s efforts to fill a key 7th Circuit vacancy. In that case, a Milwaukee lawyer defended Johnson’s decision not to return the blue slip on President Obama’s nominee, Victoria Nourse. The attorney argued that Johnson deserved the same senatorial courtesies extended to then-Senator Herb Kohl (D-Wisc.). “Lady Justice is blindfolded, which represents her neutrality,” the lawyer wrote. “Neutrality comes from applying the same procedures to all.”

What a difference seven years make. That lawyer, Michael Brennan, now stands nominated to occupy the very seat left vacant because Senator Johnson’s blue slip was honored. This time, it is the other Sen. Tammy Baldwin (D-Wisc.), objecting. The citizens of Wisconsin duly elected her, but that clearly matters not to Senate Republicans who have chipped away any veneer of “applying the same procedures to all.”

In one of his many abuses of Senate Judiciary Committee traditions and practices, Chairman Grassley gave Brennan a committee hearing earlier this year, and Majority Leader Mitch McConnell has now scheduled Brennan for a full Senate vote. If the Senate confirms Brennan, it will mark the first time in 38 years that a circuit court judge is confirmed over the objection of a home-state senator. 

Utterly dismantling this check on presidential power would be alarming under any circumstance. It is particularly troubling that this procedural safeguard is being abandoned under a president who attacks the legitimacy of judges who disagree with him and who prioritizes personal loyalty over fealty to the law.

What is more, senate Republicans are employing this partisan abuse of power specifically to grant Brennan a lifetime judgeship. Brennan, we should remember, has drawn widespread opposition for his right-wing judicial philosophy and his record as a Scott Walker crony who led a judicial selection commission for state judges and recommended individuals who made extreme and hateful anti-LGBTQ statements.

And if one home state senator’s objection becomes irrelevant, what about if both home state senators object to a lifetime appointment in their state? That is precisely where Chairman Grassley is going next. Brennan is just one example of the McConnell-Grassley axis of senatorial partisanship. He has just announced his plan to hold a hearing on May 9 for 9th Circuit nominee Ryan Bounds — over the objections of both home-state Oregon senators. Grassley’s decision will put every appellate court in the country at risk of a Trump takeover if senators on both sides of the aisle do not assert their rights.

Sadly, there is more. On April 25, Republicans on the Senate Rules Committee advanced a rules change that would weaken the Senate’s remaining role in vetting and evaluating presidential nominations, dramatically reducing the time allotted for debate on nominees from 30 hours to just eight hours for executive branch nominees, and to only two hours for district court nominees. This push to stifle scrutiny and rush the confirmation of Trump nominees is taking place despite the record pace at which these lifetime federal judgeships are already being confirmed, as Trump himself has bragged.

To be clear, what’s at stake is not about any one judge or vote. Voting to confirm Brennan this week means Senate Republicans will have no basis to complain when the next president overrides their objections to lifetime appointments in their states. As Brennan said, “Neutrality comes from applying the same procedures to all.”

Every senator’s vote to confirm Brennan is a vote to reduce his or her own power to be a check on the president. They are each chosen to protect and serve their constituents and our democracy. Voting for Brennan will be a dereliction of that duty. They should be held accountable.

Kristine Lucius is the executive vice president for policy, The Leadership Conference on Civil and Human Rights.