President Trump and Senate Republicans are remaking the federal courts in their own image.
Prior to the Trump administration, there was plenty of tit for tat in the escalating partisan wars over judicial nominations. But these tactics were aimed at blocking nominees. Since Trump was sworn in, however, the GOP Senate leadership has moved aggressively to speed confirmation of new judges, casting aside long-existing practices and traditions that ensured some consensus in picking the judges who sit on the federal courts of appeal.
Gone, for all practical purposes, is the tradition that prevented action on a judicial nominee who was not approved by his or her home state senators. Gone is the practice of not holding a confirmation hearing until the American Bar Association has completed its professional evaluation of the nominee. Gone is the general practice of not piling up multiple nominees in one hearing. And now, for the first time, the Senate Judiciary Committee is holding confirmation hearings during a Senate recess, over the objections of the minority party.
No other Senate committee has been holding hearings during the current recess. But for judicial nominees, the Senate confirmation train keeps on running — even though, and likely because, Senate Democrats can’t be there. The Democrats and allied independents are defending 26 seats in next month’s elections and have to campaign during the final weeks before the midterms.
This week, just two senators — Republicans Orrin Hatch of Utah, who is retiring, and Mike Crapo of Idaho — showed up at the hearing for two appeals court nominees. The senators excused the nominees after just 19 minutes, several minutes of which were consumed by one controversial nominee talking about his wife, parents, children and even his cat.
Hatch, who chaired the Judiciary Committee for eight years, never held a recess hearing for a federal judge nominee. When asked this week why Republicans went ahead this time, he said, “We have to move ahead, and if they’re not cooperating, you just go ahead.”
Going ahead has yielded substantial results for the Republicans over the past two years.