Progressives may be counting the days until Donald Trump exits the White House, but when it comes to the courts, his impact will last decades. Already, Trump has placed arch-conservatives on the Supreme Court and two circuit courts, judges far to the right of the conservative judicial mainstream. And with over 100 vacancies in the federal judiciary, many more are in the pipeline.
Contrary to rumors about a rift between Trump and Senate Republicans, every nominee thus far has won the party’s unanimous support. Not a single Senator has defected on a single nominee.
Most importantly, Sen. Charles Grassley, the chairman of the Senate Judiciary Committee who chose not to give a hearing to Judge Merrick Garland or 59 other Obama nominees, has again departed from decades of Senate practice to expedite the hearing processes for circuit court appointees. And his most dramatic step may be yet to come.
First, Grassley has stacked multiple nominees together into a single hearing, making it extremely difficult to properly vet and question any of them.
Remember Rep. Maxine Waters’ famous “Reclaiming my time” confrontation with a recalcitrant Steven Mnuchin? She said that phrase (over and over again) because she only had five minutes to question the Treasury secretary, and she knew he was trying to run out the clock.
Thanks to Grassley, that same time limit now applies to nominees for lifetime appointees to federal appellate courts. Democratic senators have only five to 15 minutes to question them before their nominations receive perfunctory, party-line votes—remember, post nuclear option, filibustering judicial nominees is all but dead—and then spend decades on the bench.
Grassley is treating judicial nominees like Big Macs: stack ’em, pack ’em, and get on to the next one.
Kristine Lucius, executive vice president at the Leadership Conference on Civil and Human Rights, told The Daily Beast that Grassley’s actions are unprecedented—and consequential. “Pace really matters,” Lucius said. “He’s trying to move twice as fast on circuit court nominees, over the objections of the minority.”
According to Lucius, nominees had been “stacked” previously only when the minority party agreed to do so. During the Obama years, for example, Republican senators requested expedited treatment for two nominees from Georgia, and they were stacked together. “That was at the request of the minority party,” explained Lucius. “Senator Grassley is doing this over the objection of the minority party.”
When Republicans tried to stack nominees during the Bush 43 years, Democrats objected so much that Senator Orrin Hatch, then chair of the judiciary committee, had to backtrack and schedule additional hearings.
Now, however, Democrats and everyone else are so distracted by the shocking-crisis-of-the-day pace of the Trump administration, the rapid-fire transformation of the judiciary system has attracted little attention—even though its effects will be far longer-lasting than most of Trump’s shenanigans.
But Grassley’s most audacious move may be yet to come. Rumors have circulated that he is considering doing away with so-called blue slips, the customary requirement that senators from a nominee’s home state both agree to the nomination. Like most rules of the Senate, blue slips are only a custom—but it is a custom that dates back over a century and is an important part of the system of checks and balances.
“If Senator Grassley gets rid of blue slips,” warned Lucius, “it will be a huge departure and will diminish the role of the Senate writ large.” That’s because presidents—not just Trump, of course, but whoever succeeds him in the future—would have no reason to consult with senators before nominating potential judges, further empowering the executive branch at the expense of the legislative.
It would also be the height of hypocrisy. Majority Leader Mitch McConnell and Attorney General Jeff Sessions withheld blue slips frequently during the Obama years to block judicial nominees they didn’t like, and this was understood as part of the Senate’s role of providing “advice and consent.”
Finally, all these unprecedented moves come in four extremely unusual contexts.
First, they follow Grassley’s unprecedented stonewalling of Judge Garland, President Obama’s nominee to the Supreme Court. In 2016, Grassley couldn’t find the time for a single hearing. Now, he can’t rubber-stamp judges fast enough.
Second, the fast-tracking of judicial picks comes at a time when courts have frequently been the last bastion of civil rights. From limiting Trump’s travel ban to slowing the EPA’s rollback of environmental regulations, the third branch has admirably performed its constitutional role thus far, limiting executive power when it transgresses constitutional norms.
Third, the nominees Grassley is rushing through the Senate were chosen by Trump’s outsourced ideologues at the Federalist Society and Heritage Foundation, who have put together a wish-list of extreme right-wing nominees that is being pushed through by the administration and now the Senate. That’s how we now have a circuit court judge who has compared abortion to slavery and a nominee who called Justice Anthony Kennedy a “prostitute.” These aren’t conservatives—they’re wing nuts.
It’s hard to convey how unusual this is: a think tank’s dream team of ideologues being rubber stamped by the executive and legislative branches—and bound for the judicial branch. Just when the Senate’s role of advice and consent is most needed, the Republicans who control the chamber are abdicating it.
Finally, these ideologues’ motives are entirely explicit. Leonard Leo, Trump’s adviser on the judiciary who is managing the think-tank-to-court pipeline, said in May that “I would love to see the courts unrecognizable.” Think about that for a moment: unrecognizable.
In some ways, Leo’s dream has already come true: a fast-track process, short-circuiting the constitutional requirements of advice and consent; a blank check to put up the most extreme nominees imaginable; and a record vacancy rate, thanks to unprecedented obstruction of President Obama’s nominees. The process is already unrecognizable.
The results may soon be as well.