The Year Ahead in Judicial Appointments: Four Big Questions

by Ed Whelan

In the forthcoming issue of National Review (out tomorrow, I believe), I have an article on President Trump’s great start on judicial appointments in 2017 and on the very challenging path ahead. Reworking some of the material in my article, I present here what I regard as the four big questions on the judicial-nominations front for 2018:

1. Will a Supreme Court vacancy arise?

Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.

I very much doubt that any other justice is considering stepping down. But, as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.

If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.

2. How expeditiously will Senate Judiciary Committee chairman Chuck Grassley apply his newly clarified blue-slip policy?

The committee’s blue-slip privilege accords individual senators the opportunity to approve or disapprove of judicial nominations—both appellate and district-court—in their home states. Judiciary Committee chairmen in recent decades have varied on whether a negative blue slip flatly blocks a nominee. In November, Grassley clarified that he will not treat a negative blue slip as a veto but will instead have the blue-slip process encourage consultation between the White House and home-state senators. If that consultation occurs, Grassley says that he “won’t allow senators to block nominees for political or ideological reasons.”

There are 149 existing vacancies on the federal courts and an additional 20 declared future vacancies (instances in which a sitting judge has stated an intention to step down on a date certain or upon confirmation of a successor). There are nominees for only 50 or so of those vacancies. (I’ve excluded from my count the three district-court nominations that will not be resubmitted.)

The impact of the pre-November uncertainty about Grassley’s blue-slip policy can be seen in the deep divide between nominations in red-senator states (states with two Republican senators) and those in blue-senator or purple-senator states (states with two or one Democratic senators, respectively). As this spreadsheet shows, as Christmas approached, there were 70 district-court vacancies in blue-senator or purple-senator states—including nearly 50 that existed on Inauguration Day—and a grand total of only two nominations to those 70 vacancies. (An additional nine nominations were made just days before Christmas.) There were also eleven appellate vacancies in blue-senator or purple-senator states—including five that existed on Inauguration Day—and only two nominations to those eleven vacancies.

It’s of course no surprise that the White House and individual Democratic senators couldn’t come to agreement on acceptable nominees. Grassley’s clarified blue-slip policy ought to break the stalemate and encourage the White House to make nominations that home-state Democrats haven’t precleared. The big question is how long he allows the consultation process to play out before he is willing to proceed with committee hearings and votes on nominees.

3. Will Senate majority leader Mitch McConnell find a way to break the Democrats’ blockage of floor votes on judicial nominees?

Thanks to Harry Reid’s leadership, the 60-vote threshold for cloture on lower-court (and executive-branch) nominations was abolished in 2013. But Senate Democrats have been chewing up scarce Senate floor time by routinely requiring cloture votes on all nominations. The Senate’s executive calendar at year end had over 100 nominations (executive and judicial) awaiting a floor vote. This back-end clog needs to be cleared, one way or another, if the judicial-confirmation pipeline is going to flow smoothly.

4. Will Republicans retain control of the Senate after the November 2018 elections?

Contrary to expectations of a year ago, the Senate is now viewed by many as up for grabs in the next elections. The White House and Senate Republicans will be racing against the clock to confirm as many judges as possible before November, and Senate Democrats will be doing their best to run out the clock. If Democrats win control of the Senate, judicial confirmations will grind to a halt next year. But if Republicans retain control, President Trump will have at least two more years, on top of his first two, to work to achieve a genuine transformation of the American judiciary.

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