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Biden, Republicans at Crossroad Over Red-State Judicial Nominees [1]
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Date: 2023-03
The White House is reaching out to Senate Republicans about US district court vacancies in their states, although lawmakers vary widely in how well they think the discussions are going.
Finding common ground will be vital to the Biden administration since 38 of the 56 trial court vacancies without a pending nominee are in red states, or those with two Republican senators.
A lack of progress could ultimately increase pressure on Judiciary Committee Chair Dick Durbin (D-Ill.). He’s so far opted to maintain full home-state senator support via the blue slip process for district court nominations to advance. Progressives want him to abandon the custom to increase the pace of nominations.
Biden surpassed 100 judicial confirmations on Tuesday, including Ketanji Brown Jackson to the Supreme Court. Most of his circuit and district court appointments have been nominees in blue states, or those represented by Senate Democrats, who narrowly control the chamber.
Paige Herwig, a senior White House counsel who works on judicial nominations, said the administration is looking for people who make sense for a Democratic president to nominate and who’ll get the necessary backing from GOP home-state senators.
“We believe there are plenty of candidates out there who will fit that bill in any given legal community,” Herwig said.
Illustration: Jonathan Hurtarte/Bloomberg Law
While Biden has had success in finding mutually agreeable nominees in red states like Iowa, Idaho, and Indiana, others may prove difficult.
Sen. John Cornyn (R-Texas) complained at a Jan. 26 Judiciary Committee meeting that the White House hadn’t reached out promptly about vacancies in his state. Texas has six district court seats open.
“They shouldn’t blame Republicans for their own failure to proceed with dispatch on those” nominations, Cornyn said in an interview. He said he forwarded some candidates for the Fifth Circuit and talked to the White House about district vacancies, but “they’ve shown very little interest.”
Sen. Lindsey Graham (R-S.C.), the top Republican on the judiciary panel, said at a committee meeting last week that there’s a “willingness to consult, but it’s got to be a two-way street.”
White House staff have been going to the offices of Republicans with vacancies in their states to indicate they want to work with people, a White House aide said. Those conversations differ state-to-state. Sometimes the White House has names it raises and sometimes senators have their own.
Geography can also be important to the process as individual legal communities express what they’re hoping for, the aide said, pointing to instances in which a nominee might come from a smaller or rural community where a courthouse is based.
Durbin has said he’ll respect the blue slip as long as a senator’s objections to a nominee aren’t based on race, gender, or sexual orientation. He’s also encouraged compromise between Republicans and the White House.
Lisa M. Holmes, an associate professor of political science at The University of Vermont who studies judicial politics, said negotiations on nominations could impact how Democrats choose to handle the blue slip going forward.
“How things play out in the next couple of months are going to tell the story—whether there’s real negotiation here and whether the groups and the individual senators on both sides are willing to accept negotiations here,” Holmes said.
No blue slip is required for circuit nominees. Republicans abandoned the practice during the Trump administration and Democrats have maintained that policy.
Conversations Ongoing
Florida’s senators, who represent the state with the most district vacancies at seven, said agreement on nominations is possible. “We think we have a path forward. I’m surprised they didn’t move sooner on it, but hopefully we’ll have something soon,” Sen. Marco Rubio (R-Fla.) said in an interview.
Rubio said he’s sent the White House recommendations from his bipartisan judicial nominating commission that he would approve. “It’s now up to them to make a choice on which ones they want to nominate,” he said.
Sen. Rick Scott (R-Fla.), who interviews candidates himself in a process separate from Rubio’s, said he’s continuing to do them.
“I think that it appears that they finally have an interest in having some conversations,” Scott said of the White House. He added that looks “forward to filling the vacancies.”
Sen. John Kennedy (R-La.) , a Judiciary Committee member who represents a state with four available district vacancies, said conversations with the White House have been going “pretty well” and that he’d sent a few names.
“My sense is that the White House was concerned first with the court of appeal, and we reached an agreement on the court of appeal nominee,” Kennedy said. Kennedy supported the confirmation of Dana Douglas to a Louisiana seat on the Fifth Circuit in December.
Success and Failure
Not all attempts at nominations in states with Republican senators have gone smoothly.
The White House this year didn’t renominate William Pocan to a district court in Wisconsin after Sen. Ron Johnson (R-Wis.) rescinded his support. He and Sen. Tammy Baldwin (D-Wis.) previously recommended Pocan for the seat. The issue set up the first real test for Durbin’s treatment of the blue slip.
The potential nomination of conservative lawyer Chad Meredith to a Kentucky district court also fell through in July after Sen. Rand Paul (R-Ky.) said he wasn’t consulted and wouldn’t support his nomination. News of Meredith’s potential selection also angered progressives who didn’t want to see a nominee who had defended abortion restrictions.
Elsewhere, nominees easily received Republican support.
Sen. Mike Braun (R-Ind.) in an interview called Biden’s selection of US Magistrate Judge Matthew Brookman to a seat on the US District Court for the Southern District of Indiana “an easy checkoff” for him. Brookman also has support from the state’s other Republican senator, Todd Young.
When asked what his advice was for other Republican colleagues looking to deal with the White House on nominations in their states, Braun suggested finding middle ground.
“I’d say find some at least middle-of-the-road, slightly conservative nominees, and it’ll probably go pretty smoothly, especially from a conservative state,” Braun said.
—With assistance from Tiana Headley
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