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Judicial machine chugs along in Senate amid coronavirus pandemic

Trump kicks off Memorial Day weekend with golf
Trump kicks off Memorial Day weekend with golf 02:04

Washington — While the coronavirus crisis has brought most congressional action to glacial creep, the Senate machine churning out President Trump's judicial nominations is still humming. 

Since February 11, the Senate has confirmed nine federal judges, bringing the total number of judges on the federal bench appointed by President Trump to 196. 

Last week, the Senate voted to confirm three nominees to district courts and teed up votes on two more for after Memorial Day. The Senate Judiciary, meanwhile, has proceeded with the nominations of Cory Wilson to the 5th U.S. Circuit Court of Appeals, and Justin Walker, tapped for the U.S. Court of Appeals for the D.C. Circuit.

Once they're confirmed, all of the vacancies on the 12 U.S. circuit courts of appeals will be filled. Mike Davis, head of The Article III Project, a judicial advocacy group, said he cannot recall a past president filling all vacancies on the regional circuit courts.

The White House, meanwhile, has continued to roll out waves of judicial nominees, though most are to fill open seats on the federal district courts, of which there are now 73 vacancies.

Democrats are concerned about Walker's lack of experience, and they're unhappy about his open opposition to the Affordable Care Act. But the 37-year-old protege of Senate Majority Leader Mitch McConnell has already been confirmed by the Senate once, in October 2019, and has been serving as a federal district judge in Kentucky for the past six months. Initially rated by the American Bar Association as "unqualified" because of his inexperience, Walker's rating by the group has been raised to "well qualified" for the circuit court nomination.

The federal appeals courts, which review district court decisions, in most cases are the final arbiters of legal disputes. The dozen circuit courts across the U.S. hear thousands of cases each year, and among those, the Supreme Court will consider between 100 to 150.  

The Senate's push to approve Mr. Trump's nominees amid the pandemic has rankled Democrats, who argue that if senators and staff have to be in Washington, they should be focused on the coronavirus. 

"This is the Senate's third week back in D.C.," Senator Ron Wyden, a Democrat from Oregon and member of the Judiciary panel, tweeted recently. "Instead of helping the 36 million Americans who have lost their jobs or the thousands of small businesses having to close their doors, Mitch McConnell is forcing votes so more extremist judges and nominees."

Chris Kang, chief counsel for Demand Justice, a progressive judicial group, accused the Judiciary Committee of shirking its oversight responsibilities and said it should be examining the virus' impact on the criminal justice and immigration systems.

"Where are the hearings for that?" he wants to know. "Where is the oversight?" 

However, Davis, former chief counsel for nominations at the Judiciary Committee, said the Senate is capable of conducting its oversight duties while working on nominations concurrently: "This is why the Senate divides up its work among committees, so it can walk and chew gum at the same time."

Davis stressed that federal judges have also played a critical role during the coronavirus crisis in ensuring that federal, state and local governments don't exceed their authority during this public-health emergency. 

"The Senate's most essential business is vetting federal judicial nominees who understand their critical role is to protect all Americans from government overreach, especially during the coronavirus crisis when many politicians are more interested in power grabs than public safety," he said.

He cited a recent ruling from Walker that blocked the Louisville mayor's ban on drive-in church services as evidence of the role judges have been playing during the pandemic.

"These politicians have a lot of power during a crisis, but they cannot use that power to act arbitrarily or to discriminate, especially against Christians or others of faith," Davis said.

A spokesperson for the Judiciary Committee's Republican majority pointed out that the committee held a hearing on liability during the COVID-19 pandemic earlier this month and said that committee chair Lindsey Graham's "first order of business" after the recess would be to hold a hearing on the spread of the virus in prisons, followed by another on coronavirus fraud and scams.

Even before the pandemic, many courts were facing judicial emergencies because of unfilled vacancies, the spokesperson said, adding that filling those vacancies is "part of [the committee's] response to the coronavirus." 

The three district court judges confirmed by the Senate in the week before the recess received bipartisan backing. Kang is surprised by the level of Democratic support for Mr. Trump's nominees and said these senators should be opposing them or withholding "blue slips" to pressure the Senate to focus on the coronavirus response. 

A "blue slip" refers to the slip of paper on which home-state senators write whether they support or oppose a nominee. An unreturned blue slip signals opposition. Graham, like his predecessor as chairman, Senator Chuck Grassley, allows an appeals court nomination to proceed with unreturned or negative blue slips if there is meaningful consultation between the senators and the White House. However, district court nominees require two positive blue slips from both home-state senators. 

So, when a Democratic home-state senator withholds a blue slip for a district court nominee, the nomination does not proceed. Of the 30 seats on the district courts awaiting nominees, the vast majority are in Democratic  or "purple" states.

In mid-May, the committee approved the nominations of several judges for district courts, including nominees who had received support from Democratic home-state senators. Nevada Senators Catherine Cortez Masto and Jacky Rosen, both Democrats, praised Jennifer P. Togliatti's nomination to the district court in Nevada, calling her a "trusted and experienced member of Nevada's legal community" and vouching for her integrity.  

Some Democrat-led states like New Jersey and California have several vacancies. Former White House Counsel Don McGahn, who was instrumental in the judicial selection process while at the White House, has blamed New Jersey Senators Cory Booker and Bob Menendez, both Democrats, for the backlog in New Jersey district court cases, because they have not submitted blue slips approving Mr. Trump's nominees. 

But the president has not yet announced picks for any of the six open seats on the federal district court in New Jersey.

Mr. Trump's reshaping of the federal judiciary has been a hallmark of his first term and earned him widespread praise from conservatives. In all, the Senate has confirmed 196 of his judicial picks, including 51 to the federal courts of appeals. Mr. Trump has also appointed two Supreme Court justices.

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