The Judicial Confirmation Wars Are About To Escalate

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Kevin Daley Supreme Court correspondent
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President Donald Trump may soon name David Porter, an attorney in private practice, to a vacancy on the 3rd U.S. Circuit Court of Appeals, which could prompt a major showdown over judicial confirmations.

Porter, who practices at Buchanan, Ingersoll, & Rooney and leads the Pittsburgh chapter of the Federalist Society, enjoys the support of Pennsylvania GOP Sen. Patrick Toomey, though the state’s senior senator, Democrat Bob Casey, could torpedo the nomination.

By Senate convention, senators from states where judicial vacancies occur submit an opinion or a “blue slip” giving a positive or negative evaluation of a nominee named to that vacancy. As a general matter, the Senate Committee on the Judiciary will not convene a hearing for a nominee until the relevant senators submit their blue slips, effectively giving home state senators veto power over judicial nominations.

Though it’s not clear that the White House has settled on Porter for the post, the Huffington Post reports Casey has signaled his opposition to the pick, and will withhold his blue slip should Trump submit his name to the Senate. Should Casey block the nomination by withholding his blue slip, he will join Democratic senators in several other states where vacancies currently exist who are likely to veto Trump’s picks.

Early this week the Trump administration announced the selection of 10 nominees to vacant judgeships around the country. At least two of these nominees — Michigan Supreme Court Justice Joan Larsen and Minnesota Supreme Court Justice David Stras — are likely to draw vetoes from Democratic senators in those respective states.

The nominations could precipitate a battle in the Senate over the blue slip protocol, which has governed judicial nominations since 1917. Judiciary Committee chairman Sen. Chuck Grassley and most committee Republicans support the tradition, though pressure is mounting from outside sources to axe blue slips altogether.

Progressive activists in Pennsylvania successfully blocked Porter’s appointment to a district judgeship during the Obama administration. In addition to his affiliation with the Federalist Society, Porter sits on the board of trustees of the Center for Vision and Values, a conservative think tank affiliated with Grove City College. The organization advances socially conservative positions.

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