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Six-month checkup on federal judicial vacancies during Trump's first term

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July 20, 2017


On July 20, 2017, President Donald Trump (R) marked his sixth full month in office, the halfway point in the first year of his first term. Trump inherited a large number of vacancies in the federal judiciary. When Trump assumed office on January 20, 2017, of the 870 life-term Article III federal judgeships, he inherited 108 vacancies. Since that time, among Article III life-term judges, the number of vacancies has grown. As of July 20, 2017, there were 131 vacant Article III life-term positions in the federal judiciary. These include positions on the Supreme Court of the United States, the U.S. Court of International Trade, U.S. courts of appeal, and U.S. district courts. Trump has submitted 27 nominations to fill vacancies on these courts.[1][2]

In January of 2017, Ballotpedia presented a report on the potential outlook for vacancies during Trump's first term in office. This six-month checkup examines how the president is managing the vacancies in the federal judiciary, both inherited and new, and to see how Trump's management compared with his five immediate predecessors.


HIGHLIGHTS
  • Trump has submitted 27 Article III judicial nominations since taking office.
  • None of Trump's nominees to district courts are in states with any Democratic senators.
  • Of the presidents under study, Trump has both the highest number of vacancies and the highest vacancy percentage of any sitting president six months into his first term.
  • Trump has submitted nominations to fill more than 20% of federal judicial vacancies during his first six months in office, including the highest number of nominees to federal district courts of any president in this report.
  • Trump has had four confirmations, the highest number since George H.W. Bush, in his first six months. Trump is also the only president to have a Supreme Court, a circuit court, and a district court nominee confirmed in his first six months.


    • Vacancies

    Here were the number of Article III judicial vacancies that Trump and his five immediate predecessors inherited at the start of their respective terms:





    Since Ronald Reagan, every president has had more judicial vacancies six months into his administration than at the start of his administration.





    In comparing the two charts, the data showed that Trump has the highest number of vacancies and the highest vacancy percentage of any sitting president six months into his first term for the period under study. That said, in aggregate numbers, the number of judicial vacancies created during Trump's first six months in office is third-highest in our data (25), behind Presidents Barack Obama (29) and George W. Bush (28). While President Bill Clinton had both a larger number of vacancies and a higher vacancy percentage than Trump did at the start of their respective administrations, fewer vacancies occurred during the first six months of Clinton's administration (14) than Trump's (25).

    Vacancies by type

    The most common avenue for a judicial vacancy to be created is when a sitting judge elects to take senior status. When a judge takes senior status—which is a strictly voluntary decision, as a judge cannot be compelled to do so—this creates a vacancy that is filled via a presidential nomination and Senate confirmation. Under the Rule of 80, which is governed by provisions of 28 U.S.C. § 371, beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III federal judge.[3] As a judge's age increases until 70 years old, the number of years of service decreases, so long as the age and years of service added together equals 80.

    Federal judges are eligible for senior status at the following combined ages and years of service:[3]

    Age Years of
    service
    65 15
    66 14
    67 13
    68 12
    69 11
    70 10

    That said, vacancies occur for a number of reasons. Some judges choose to retire from judicial service entirely without taking senior status, and some judges resign prior to retirement. Others are elevated to a different federal judicial position, which creates a vacancy in the court on which that judge served previously. Some judicial vacancies are created when new positions are designated by statute. Some judges have been impeached and removed from judicial service. Sometimes judges die during the course of their active judicial service. The data presented below examine if vacancies created during Trump's first six months in office were consistent with how vacancies were created under his immediate predecessors' administrations. The data are sorted by president and by the manner in which a judicial vacancy was created. The data below do not include any information for sitting senior federal judges who may have retired, resigned, or died in office, as the decision to take senior status is the action that created the vacancy. For all other means by which a vacancy can be created that are not represented in the table, such as impeachment and removal from office, no instances of these for any president in the period under study were noted.

    The data here does not appear to indicate that Trump was a significant outlier for any of the means by which vacancies were created for the period under study. Trump is third on this list (22) for the number of judges electing to take senior status during the first six months of an administration. As a judge can elect to take senior status at a time of their choosing under the Rule of 80, the decision to take senior status may have been reached before Trump's election and subsequent inauguration.



    Nominations

    The data below compare Trump to his immediate predecessors in the number of Article III judicial nominations submitted to the U.S. Senate during his first six months. The data show that Trump has been active relative to his contemporaries in submitting nominations to the U.S. Senate. The data here show that Trump has submitted nominations to fill more than 20% of federal judicial vacancies during his first six months in office. Only President George W. Bush had a higher percentage among the presidents under study. President Bill Clinton submitted no Article III nominations during his first six months in office. In comparison to President Bush, Trump has submitted more than twice the number of nominations to fill vacancies in district courts (17) than Bush did during Bush's first six months in office (8).





    A list of all the judicial nominations submitted in the period under study is presented below:



    Blue slips and the nomination process

    A blue slip is the name for a piece of paper a home state senator returns to the chair of the Senate Judiciary Committee to show his or her approval of a federal judicial nominee. The United States Constitution does not mandate the use of blue slips, but they are considered a senatorial courtesy. Under current usage of blue slips, though United States senators have the power to prevent a federal judicial nominee from receiving a hearing and subsequently being confirmed, they are not required to ever state a reason. [4]

    115th Congress

    Calls for change on circuit court nominees

    On May 20, 2017, in a report in The Hill, several Republican senators called for a limited role for the use of blue slips on nominations to federal appeals courts (a.k.a. circuit courts).[5]

    Sen. Jeff Flake (R-Ariz.) said:

    “ I want to separate it ... Blue slips for district court judges has been time honored and I think needs to stay ... There is a question now does it apply to circuit court judges. That history is a little more mixed and I don’t think myself it ought to apply there.[6] ”

    Sen. John Cornyn (R-Texas) said:

    “ I think there’s a difference between the blue-slip application at the district court level where the court is contained wholly within a state as opposed to a circuit court, which covers multiple states ... The idea that an individual senator could veto in effect a nominee at the circuit court level is really unprecedented and I think needs to be carefully looked at.[6] ”

    Both Flake and Cornyn sat on the Senate Judiciary Committee.[5]

    Another Republican senator, Tom Cotton of Arkansas, who did not sit on the Judiciary Committee, said:

    “ Let’s be clear it is not a rule, it is not written down in the Senate rules or in the rules of the Senate Republican Conference and the tradition changes substantially based on the preferences or views of the Senate judiciary chairman ... I think the blue slip tradition can be helpful if it encourages the White House to consult in advance with senators, but we can’t allow Democratic senators to continue to obstruct this president’s agenda.[6] ”

    Response from Democratic senators

    Sen. Dianne Feinstein (D-Calif.), who was the ranking Democrat on the committee at that time, responded that Republicans should continue the blue slip tradition. "Senate Democrats did not abandon the blue slip during the Obama administration even though the Senate Judiciary Committee was controlled by Democrats for six of the eight years," she said.[7]

    Sen. Chris Coons (D) of Delaware also spoke in favor of continuing to use blue slips.[8]

    “ This isn't a partisan issue, either — this allows Republican senators to prevent Democratic presidents from confirming unqualified or inappropriate judges for their home states, and vice versa. The blue-slip process encourages bipartisanship, too, and it increases the chances of consensus candidates. Ending the blue-slip process would diminish the ability of senators to provide input based on the local needs of their states, making it increasingly difficult for the Judiciary Committee to function in a bipartisan way.[6] ”

    Senator McConnell makes comments on possible end of blue slips

    On October 11, 2017, in comments published in The Weekly Standard, Senate Majority Leader Mitch McConnell (R-Ky.) indicated that the practice of the Senate Judiciary Committee, where a home state senator's withholding of a blue slip prevented a judicial nominee from receiving confirmation hearings, would no longer be practiced. The Weekly Standard article quoted McConnell as indicating, "'The majority'—that is, Republicans—will treat a blue slip 'as simply notification of how you’re going to vote, not as an opportunity to blackball,' ... The use of blue slips, he noted, is not a Senate rule and has 'been honored in the breach over the years.' Now it won’t be honored at all."[9]

    An article published in Politico indicated that Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) had not assented to the plan. A spokesperson for Sen. Grassley, Taylor Foy, said, "The chairman of the Judiciary Committee will determine how to apply the blue-slip courtesy for federal judicial nominees, as has always been the practice ... Over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained."[10]

    When asked whether McConnell was speaking for all Senate Republicans or Republicans on the Senate Judiciary Committee, a McConnell spokesperson, Don Stewart, said, "No, he’s been talking about HIS position on the matter for some time now ... If you mean he’s not announcing a committee position, then yes, he’s not announcing a committee position."[11]

    Grassley moves to modify blue slip practice in the 115th Congress

    In an editorial published in The Hill on November 15, 2017, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) indicated that Democratic members of the Senate were abusing the historical role the blue slip process played in advising on judicial nominations, particularly in the role that the Judiciary Committee has in conducting confirmation hearings. Grassley wrote:[12]

    “

    For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee. In fact, of my 18 predecessors as chairman of the committee, only two allowed home-state senators unilateral veto power through the blue slip. ... Consultation with the White House is something we senators should value and encourage. But we should not allow home-state senators to abuse this courtesy by attempting to block committee proceedings for political or ideological reasons. ...

    Democratic senators’ recent calls for an ahistorical interpretation of the blue slip courtesy stem from a decision they made in 2013 to end the 60-vote filibuster for lower court nominees. This move, often referred to as the “nuclear option,” effectively silenced half of the Senate during confirmation votes. At the time, many Democratic senators argued it was unfair for a minority of senators to block nominees with majority support. But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. Some of the strongest supporters of the nuclear option now argue that a single senator should be able to block a nominee before even receiving a hearing. ... As the minority continues its campaign to block President Trump’s nominees, some are looking to the blue slip as a way to halt judicial nominees before they are even considered in committee. To justify this move, they argue that few nominees have been confirmed since 1979 without support from both home state senators. But this talking point ignores the fact that nominees without two positive blue slips were often filibustered on the Senate floor after a committee hearing.[6]

    		”

    On November 16, 2017, reports indicated that Grassley held confirmation hearings for David Stras, an associate justice of the Minnesota Supreme Court and one of President Trump's nominees to the United States Court of Appeals for the Eighth Circuit on November 29, 2017. Stras was nominated to the Eighth Circuit by President Trump on May 8, 2017. Shortly after the announcement, Senator Al Franken (D-Minn.) stated that he would not return a blue slip on the Stras nomination, which had prevented hearings on his nomination. With this alteration in committee policy, confirmation hearings could be scheduled for both Ryan Bounds, a nominee to the Ninth Circuit, and Michael B. Brennan, a nominee to the Seventh Circuit. Both Bounds and Brennan had Democratic home state senators refuse to return blue slips on their nominations.[13]

    Committee Democrats ask Grassley to revisit decision

    On November 17, 2017, the nine Democratic senators on the Judiciary Committee petitioned Sen. Grassley to revisit what they argued was Grassley's decision to modify the blue slip policy. The letter stated:[14]

    “

    Dear Chairman Grassley:

    We write to object, in the strongest possible terms, to your announcement that you are eliminating the longstanding Senate precedent of honoring a home-state Senator’s “blue slip” on circuit court nominees. The blue slip tradition has lasted for nearly one hundred years precisely because it protects both institutional and home-state interests that are important to the integrity of the Senate and the judiciary.

    As each member of the Senate recognizes, the states we represent are diverse. The blue slip was instituted to ensure that those nominated for lifetime appointments reflect our home states’ particular needs and the legal bar in our communities. Moreover, the blue slip encourages meaningful cooperation and consensus on nominees – allowing individual Senators to provide valuable insights into nominees whose decisions will directly impact our constituents. As was stated in the letter to President Obama from Senate Republicans referenced below, Democrats and Republicans have recognized the importance of maintaining this principle.

    In 2009, within two months of President Obama taking office, the Republican caucus wrote to him about blue slips. The letter asserted that all Senate Republicans expected the “practice of observing senatorial courtesy…to be observed, even-handedly and regardless of party affiliation.” In addition, Senate Republicans concluded “regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.” Notably, no distinction was drawn between circuit court and district court nominees in the letter.

    Six years later, when you took over the Chairmanship of the Judiciary Committee, you stated you would continue to honor the blue slip. In fact, there were nine nominees—four circuit court nominees and five district court nominees—who did not have blue slips from home-state Senators and you did not allow these nominees to receive a hearing. In addition, in April 2015 you wrote in The Des Moines Register:

    ‘For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what's known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.’

    This commitment to honor the blue slip was not simply conveyed in letters and op-eds. Members of the Republican caucus frequently exercised the leverage the blue slip provided. For example, Leader McConnell used the blue slip to block the nomination of Kentucky Supreme Court Justice Lisabeth Hughes after being consulted by the White House and publicly stating that “I’ve had a back and forth with the [Obama] Administration for a year and a half or two over that particular seat on the Sixth Circuit and I’m not going to support the person they’ve sent up.” And in 2014, Senators Chambliss and Isakson from Georgia and Senators McCain and Flake from Arizona negotiated packages of consensus judicial nominees after protracted negotiations with the White House.

    The blue slip was honored even when Republican Senators blocked nominees they had previously recommended to the White House, as happened with two district court nominees from Florida. Republicans also used blue slips to simply delay nominations for years. For example, Jill Pryor, who was nominated for the Eleventh Circuit, waited more than two years to receive a hearing after being nominated. Chairman Leahy never even scheduled a hearing for any nominee unless that nominee had blue slips returned by both home state Senators – and Chairman Grassley, you followed the exact same principle – until now.

    Our respective caucuses have pointed fingers for some time about who is to blame for the erosion of bipartisanship on judicial nominations, culminating with the elimination of the sixty-vote threshold for Supreme Court nominees earlier this year. On the issue of blue slips, however, it is indisputable that during Democratic Administrations, Democratic Chairs of the Judiciary Committee respected Republican Senators’ blue slips. Most recently, Chairman Leahy followed this principle under Republican and Democratic Presidents. We ask for nothing more than equal treatment.

    As Senator Hatch observed in 2014, “Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power. Anyone serious about the Senate’s constitutional ‘advice and consent’ role knows how disastrous such a move would be.” We wholeheartedly agree. There is no reason to have a different standard simply because the person who sits in the White House has changed.

    We ask that you reconsider your decision to further upend our institutional norms and senatorial courtesy by undoing a century of tradition.[6]

    		”

    Grassley issues formal statement on blue slip policy

    At the outset of the November 29, 2017, meeting of the Senate Judiciary Committee, the committee chairman, Sen. Chuck Grassley (R-Iowa), indicated that the blue slip policy would not be used as a means by which a home-state senator could prevent committee hearings. Grassley stated, "Home-state senators are entitled to lobby against confirmation, but they can't deny a nominee a hearing for political or ideological reasons. ... Some of my colleagues and outside groups have criticized me for allegedly abolishing a Senate tradition. As I've explained, that's not true. I'm restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years."

    Grassley's statement:

    Nominations with withheld blue slips

    The following summaries are taken from each judicial nominee's profile page. For more, click the link to each candidate profile.

    Nomination of Joseph Bianco to the 2nd Circuit

    See also: Joseph Bianco

    On October 10, 2018, President Trump announced his intent to nominate Joseph Bianco to the United States Court of Appeals for the 2nd Circuit.[15] The nomination was officially submitted to the U.S. Senate on November 13, 2018.

    Home-state Senators Chuck Schumer (D) and Kirsten Gillibrand (D) of New York opposed the nominee and did not return blue slips.[16]

    Nomination of Michael Park to the 2nd Circuit

    See also: Michael Park

    On October 10, 2018, President Trump announced his intent to nominate Michael Park to the United States Court of Appeals for the 2nd Circuit.[15] The nomination was officially submitted to the U.S. Senate on November 13, 2018.

    Home-state Senators Chuck Schumer (D) and Kirsten Gillibrand (D) of New York opposed the nominee and did not return blue slips.[16]

    In a statement, Schumer said, "Mr. Park has spent much of his career working in opposition to civil rights and seeking to advance the far-right agenda. He has been on the front lines of efforts to dismantle affirmative action policies in education, strike down our health care law, and is currently defending the Trump administration's effort to insert a citizenship question into the 2020 census."[17]

    Sen. Josh Hawley (R-Missouri) supported Park's nomination. "As a litigator, you don’t necessarily share the views of the people – in fact very often, having been a litigator myself, I can say that you might disagree quite strongly with the views of the people, or the litigating positions even, of the people you represent, but it’s your job to represent them fairly and effectively," he said.[18]

    Nomination of Daniel Collins, Kenneth Kiyul Lee, and Patrick Bumatay to the 9th Circuit

    See also: Daniel Collins, Kenneth Kiyul Lee, and Patrick Bumatay

    On October 10, 2018, President Trump announced his intent to nominate Daniel Collins, Kenneth Kiyul Lee, and Patrick Bumatay to the United States Court of Appeals for the 9th Circuit.[15] The three nominations were officially submitted to the U.S. Senate on November 13, 2018.

    California Senators Dianne Feinstein (D) and Kamala Harris (D) expressed opposition to the nomination of Patrick Bumatay, Daniel Collins, and Kenneth Kiyul Lee. Feinstein and Harris, who both served on the Senate Judiciary Committee in 2018, said the White House announced the three nominations to the Ninth Circuit Court of Appeals without consulting them.[19]

    Feinstein said in a statement:

    “ I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested.[6] ”


    She said she and Harris "strongly opposed Daniel Collins." She also said she told White House Counsel Don McGahn that Lee "failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action."[20]

    Lily Adams, Harris' communications director, said,[21]

    “ Instead of working with our office to identify consensus nominees for the 9th Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the President’s agenda, instead of acting as an independent check on this Administration.[6] ”


    McGahn wrote in a letter to Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) that the White House tried for two years to negotiate with the California senators. He said he reached out to Feinstein on multiple occasions and added Harris "refused to engage with the White House at any level, whatsoever on the issue." McGahn said the president was "exercising his prerogative to nominate his own well-qualified nominees."[19][22]

    Nomination of Ryan Bounds to the 9th Circuit

    See also: Ryan Bounds

    On September 7, 2017, President Trump nominated Ryan Bounds of Oregon to fill a vacancy on the United States Court of Appeals for the 9th Circuit. Bounds' home state senators, Ron Wyden (D) and Jeff Merkley (D), indicated in a letter to White House counsel Don McGahn that they would withhold their blue slips on Bounds' nomination. The senators wrote:[23]

    “

    We are writing today to inform you that, as previously communicated, in order to properly serve the interests of Oregonians we cannot return a blue slip on any judicial nominee that has not been approved by our bipartisan judicial selection committee.

    As you are aware, in May, we wrote you to explain Oregon's long bipartisan tradition of working together to identify the most qualified candidates for judicial vacancies. As Senators charged with the task of advice and consent in the selection of candidates, we take our responsibility to identify and recommend candidates to fill Oregon judicial vacancies very seriously. We have a long history of organizing a committee charged with thoroughly vetting applicants from the Oregon legal community. At that time, we communicated our intent to begin our selection process with the goal of providing you with a list of names for you to consider. We encouraged you to direct all potential nominees to our selection committee. ...

    Unfortunately, it is now apparent that you never intended to allow our longstanding process to play out. Instead, you have demonstrated that you were only interested in our input if we were willing to preapprove your preferred nominee. Disregarding this Oregon tradition returns us to the days of nepotism and patronage that harmed our courts and placed unfit judges on the bench. The judicial selection process is not a rubber stamp, and the insinuation that our offices were purposefully delaying the process is an indication of the partisanship with which you are pursuing this nomination.[6]

    		”

    Senate Majority Leader Mitch McConnell (R-Ky.) announced Bounds' withdrawal on July 19, 2018. Bounds would have been the 24th appeals court judge and the 45th Article III federal judge nominated by President Donald Trump (R) to be confirmed.[24]

    Sen. John Cornyn (R-Texas) said that the nominee was withdrawn because there were "objections raised that couldn’t be resolved in the short time we had, and so the White House decided to withdraw the nomination rather than have the nominee fail."[25]

    Nomination of Michael Brennan to the 7th Circuit

    See also: Michael B. Brennan (Wisconsin)

    On August 3, 2017, President Trump nominated Michael B. Brennan to fill a vacancy on the United States Court of Appeals for the 7th Circuit. One of Brennan's home state senators, Tammy Baldwin (D), did not return a blue slip for Brennan's nomination. The Wisconsin State Journal reported that the Wisconsin Federal Judicial Nomination Commission, a body that began giving recommendations to Wisconsin’s senators on federal judicial nominations in 1979, did not list Brennan as a recommended nominee.[26]

    Baldwin cited the president's decision to appoint a nominee outside of the regular practice in Wisconsin as a reason for withholding her blue slip. She said, "This nominee is not a product of our Wisconsin Federal Judicial Nominating Commission ... I am extremely troubled that (the) President has taken a partisan approach that disrespects our Wisconsin process."[26]

    Nomination of David Stras to the 8th Circuit

    See also: David Stras

    On May 8, 2017, President Donald Trump (R) nominated David Stras, an associate justice on the Minnesota Supreme Court, to a seat on the United States Court of Appeals for the 8th Circuit. Stras began his service on the state's supreme court in 2010. Prior to his judicial service, Stras worked in academia, having clerked for U.S. Supreme Court Justice Clarence Thomas as well as circuit court judges Michael Luttig of the Fourth Circuit and Melvin Brunetti of the Ninth Circuit. In May 2016, Trump announced Stras' inclusion in a list of 21 potential nominees for any vacancies on the U.S. Supreme Court that could occur during his administration. The first of these vacancies, the vacated seat of Justice Antonin Scalia, was filled by Neil Gorsuch.

    On September 5, 2017, in a statement released on his Facebook page, U.S. Senator Al Franken (D-Minn.) announced his intention to withhold his blue slip on Stras' nomination. In his statement, Franken said, "Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box. The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right."[27]

    Franken's colleague in the Senate from Minnesota, Sen. Amy Klobuchar (D), also released a statement on September 5, 2017, in which she indicated, "while I don't agree with all of his decisions, I felt it was important to actually look in depth at his record. I learned that for the vast majority of the cases he has respected precedent and sided with the majority, which has included both Democratic- and Republican-appointed judges. He is also supported by former Supreme Court Justice Alan Page. While Justice Stras was not my choice for the 8th Circuit Court, it is my view that he deserves a hearing before the Senate."

    Regarding Franken's decision to withhold a blue slip for Stras' nomination, Klobuchar stated, "I also respect the fact that Senator Franken has an equal role to play here. Under Senate practice, both Senators from a judicial nominee's home state must allow that nominee to have a hearing. Like Judiciary Chairman Chuck Grassley, I support the practice as it is a check and balance regardless of whether a state is represented by two Democrats, two Republicans or one Democrat and one Republican. The policy has resulted in decision-making for judges across party lines. This policy has held true throughout the entire Obama administration, including when Republicans ran the Senate and when Democrats ran the Senate. Changing this policy would have serious ramifications for judicial nominations in every state in the country. Given this important policy, and given Senator Franken's view that Justice Stras should not be allowed a hearing in the Senate, the White House will need to provide additional names for the 8th Circuit position."[28]

    Franken was the first senator in the 115th United States Congress to publicly withhold a blue slip for a federal appeals court nominee.[29]

    The U.S. Senate voted to confirm Stas to the U.S. Court of Appeals for the 8th Circuit on January 30, 2018. Click here for more information about Stras' judicial nomination.

    Blue slip practice prior to the 115th Congress

    From 2003 to 2007, Republicans controlled the Senate and the blue slip policy was not enforced as strictly by then-Chair Orrin Hatch (R-Utah).

    As Jeffrey Toobin of The New Yorker wrote, "In the mid-aughts, when Orrin Hatch was chairman of the Judiciary Committee and Democrats began agitating against some of President George W. Bush’s nominees, Hatch started to ignore the blue-slip tradition. He would conduct hearings even if Democratic senators from the nominees’ home states had not sent in positive blue slips, and several of those nominees were ultimately confirmed."[30]

    According to Toobin's report, Sen. Hatch's successor as chairman, Patrick Leahy (D-Vt.), "recommitted himself to honoring blue slips. 'I assume no one will abuse the blue-slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate. ... As long as the blue-slip process is not being abused by home-state senators, then I will see no reason to change that tradition.'"[30]

    Leahy adopted a policy where, as he noted in 2012, "I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators."[31] In the 114th United States Congress, Grassley adopted a similar policy and refused to move nominations forward if a home state senator failed to return a blue slip.





    Confirmations

    The data comparing Trump's confirmations at this point in his administration with those of his predecessors is presented below. Of the presidents under study, Trump is tied for the highest number of judicial confirmations in the first six months of his presidency (4). Both Trump and President George H.W. Bush had four nominees confirmed to vacant federal seats in the first six months of their administrations. Trump is also the only president under study to have a Supreme Court, a circuit court, and a district court nominee confirmed in his first six months.

    Like President George H.W. Bush (Fernandez, Rymer), two of Trump's nominees were sitting federal judges at the time of their nominations (Gorsuch, Thapar). Unlike President Bush, however, only one of Trump's confirmed nominees was nominated by his predecessor to the same vacancy. David C. Nye was nominated to the District of Idaho in 2016 by President Barack Obama. President Bush's confirmed nominees, however, had each been nominated by Ronald Reagan to the same position.



    Looking ahead

    On June 7, 2017, Adam Liptak of The New York Times noted that Trump was "making good on a promise last month to name monthly waves of candidates to the federal bench in a methodical effort to fill more than 120 openings." As Trump pursues that effort, Ballotpedia will continue to monitor and report on the administration's progress.

    See also

    Footnotes

    1. ↑ We count the seat to which Judge David C. Nye was confirmed on July 12, 2017, as a vacancy because, as of July 20, 2017, the Federal Judicial Center had not reported that he had received his commission to that court. The Administrative Office of U.S. Courts, however, did not list Nye's seat on the district court as a vacancy at that time.
    2. ↑ Regarding the district courts, this number does not include four federal district judges who serve on U.S. territorial courts, as these district judges serve fixed terms of service.
    3. ↑ 3.0 3.1 Cornell University's Legal Information Institute, "28 U.S. Code § 371 - Retirement on salary; retirement in senior status," accessed December 19, 2016
    4. ↑ Judicialnominations.org, Blue slips
    5. ↑ 5.0 5.1 The Hill, "GOP talks of narrowing ‘blue-slip’ rule for judges," May 20, 2017
    6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    7. ↑ The Washington Times, "Feinstein demands GOP follow 'blue slip' tradition for Trump's nominees," May 24, 2017
    8. ↑ Business Insider, "The Senate might clear the biggest roadblock Trump faces in cementing a key part of his legacy," September 21, 2017
    9. ↑ The Weekly Standard, "Mitch McConnell goes to the mattresses for Trump's judicial nominees," October 11, 2017
    10. ↑ Politico, "McConnell ratchets up judicial wars—again," October 11, 2017
    11. ↑ The Huffington Post, "Mitch McConnell Is Keeping The Senate Rule That Lets Dems Block Trump’s Judges," October 11, 2017
    12. ↑ The Hill, "100 years of the blue slip courtesy," November 15, 2017
    13. ↑ Politico, "Grassley rips up 'blue slip' for a pair of Trump court picks," November 16, 2017
    14. ↑ Senator Dianne Feinstein, "Judiciary Democrats denounce Grassley blue slip decision," November 17, 2017
    15. ↑ 15.0 15.1 15.2 WhiteHouse.gov, "President Donald J. Trump Announces Eighteenth Wave of Judicial Nominees, Eighteenth Wave of United States Attorney Nominees, and Thirteenth Wave of United States Marshal Nominees," October 10, 2018
    16. ↑ 16.0 16.1 New York Law Journal, "Trump 2nd Circuit Nominees Grilled as Democrats Fume Over Consideration," February 13, 2019
    17. ↑ Senate Democrats, "Schumer statement on Senate Republicans advancing the nominations of Michael Park and Joseph Bianco for the Second Circuit," March 7, 2019
    18. ↑ Courthouse News Service, "Senate Presses 2nd Circuit Nominee on Conservative Causes," February 13, 2019
    19. ↑ 19.0 19.1 The Hill, "Trump, Feinstein feud intensifies over appeals court nominees," October 16, 2018
    20. ↑ United States Senator for California Dianne Feinstein, "Feinstein non Ninth Circuit Nominees," October 11, 2018
    21. ↑ The Sacramento Bee, "Trump defies California senators with 9th Circuit judge nominations," October 11, 2018
    22. ↑ CNN, "White House nominations to 9th Circuit set off firestorm," October 13, 2018
    23. ↑ U.S. Senators Ron Wyden and Jeff Merkley, "Letter to Don McGahn," September 7, 2017
    24. ↑ The Hill, "Controversial Trump judicial nominee withdraws," July 19, 2018
    25. ↑ ABC News, "GOP senators force White House to withdraw Trump's pick for ninth circuit," July 19, 2018
    26. ↑ 26.0 26.1 Wisconsin State Journal, "Trump court appointee never cleared Wisconsin commission, Sen. Tammy Baldwin says," August 5, 2017
    27. ↑ Facebook, "U.S. Senator Al Franken," September 5, 2017
    28. ↑ Senator Amy Klobuchar, "Klobuchar Statement on Nomination of Justice Stras to the Eighth Circuit Court of Appeals," September 5, 2017
    29. ↑ Star Tribune, "Franken opposition raises doubts about Stras nomination," September 5, 2017
    30. ↑ 30.0 30.1 The New Yorker, "Blue Slip Battle: The Senate obstructionists' secret weapon," November 26, 2013
    31. ↑ Think Progress, "The imaginary rule that keeps Obama's judges from being confirmed," April 17, 2014
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