This column by ACRU General Counsel Ken Klukowski was published October 26, 2017 by Breitbart.
WASHINGTON, D.C. — Senate Republicans confirmed one federal judge on Thursday and set the stage to confirm five more judges next week, including to federal appeals courts across the nation. While these are victories for President Donald Trump, conservatives caution senators that this week’s developments are a good start, but not enough to satisfy them when it comes to the federal courts.
Senate Majority Leader Mitch McConnell (R-KY) filed for cloture on five judicial nominees, one to the federal trial court in Washington, D.C., and the other four to the U.S. Courts of Appeals for the Third, Sixth, Seventh, and Tenth Circuits. The federal appeals courts are just one step down from the U.S. Supreme Court.
The appellate nominees are: Stephanos Bibas for the Third Circuit, Joan Larsen for the Sixth Circuit, Amy Coney Barrett for the Seventh Circuit, and Allison Eid for the Tenth Circuit.
Larsen is currently a justice on the Michigan Supreme Court, and Barrett is a professor at Notre Dame Law School. They had confirmation hearings in September and made it through the Senate Judiciary Committee (SJC) on October 5, but had been stymied there for the past three weeks.
Bibas is a professor at University of Pennsylvania Law School, and Eid is a justice on the Colorado Supreme Court. They both had hearings in SJC last week, and were voted out of committee Thursday morning.
These nominees are considered especially important because Larsen and Eid were two names on President Trump’s list of potential Supreme Court picks. These two—both women—are considered possible contenders for the seat of Justice Ruth Bader Ginsburg, should her seat become vacant during the next three years.
The trial court nominee on whom McConnell filed cloture is Trevor McFadden, slated for final confirmation on Monday to the U.S. District Court for the District of Columbia. The four appellate court nominees will then follow.
Speaking on the Senate floor on Thursday, McConnell lamented that despite the fact that “the well-qualified men and women the president has nominated enjoy substantial bipartisan support,” Democrats are abusing Senate rules and precedent to create “partisan procedural hurdles” that cannot deny the ultimate outcome of confirmation but can burn up hundreds of hours of time that could go to other priorities.
Facing relentless pressure from Republicans to confirm President Trump’s nominees, McConnell promised on the Senate floor, “We will confirm these nominees. You can count on it.”
Some nominees are still in limbo after today’s moves, most notably Minnesota Supreme Court Justice David Stras, who was nominated for the Eighth Circuit. Stras is still held hostage in the SJC because Sen. Al Franken (D-MN) refuses to return a blue piece of paper with a check mark to Chairman Chuck Grassley (R-IA).
Conservative leaders insist, however, that they will not be fully satisfied until McConnell reinterprets Senate rules and changes Senate practice to remove the remaining roadblocks on President Trump’s nominees, mainly on the Senate floor rather than in committee. Judicial Crisis Network Chief Counsel Carrie Severino discussed the chief roadblock, pointing out that allowing 30 hours of post-cloture debate on every nominee is consuming massive amounts of Senate session time, slowing the confirmation rate of judges to a crawl.
McConnell’s actions on Thursday do not fix that problem, and he will have to hold 50 of his 52 Republicans together to affirm any change to the 30-hour standard. Sen. James Lankford is pushing to reduce post-cloture debate to eight hours, while some conservatives argue that debate on all nominees — judicial and executive — should be limited to two hours.
Thursday’s actions illustrated the post-cloture problem, as the Senate confirmed Judge Scott Palk to the U.S. District Court for the Western District of Oklahoma by a 79-16 vote, but only after consuming a couple days of the Senate’s debate time. Palk had actually first been nominated by Obama.
With Senate Democrats using the 60-vote requirement to end filibusters as a tool for blocking some legislation and with moderate Republicans proving unreliable when it comes to passing all remaining legislation in the 52-48 Republican-controlled Senate, the White House and the president’s allies are increasingly looking to big wins in judicial nominations to give the president a series of accomplishments going into the 2018 midterms.
The Senate had confirmed merely seven of President Trump’s 56 judicial nominees before today’s action. After these nominees, that number will stand at 13. The president still has another 89 judicial nominations to make to fill all current vacancies, with more coming soon.