Judicial Nominations: Democrats Have Nothing But Character Attacks

Michael Thielen Executive Director, Republican National Lawyers Association
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Thirty years ago, the Senate rejected Judge Robert Bork for the Supreme Court after a series of unprecedented and often untrue attacks by Democrats on one of the nation’s foremost legal scholars.  Today, the Democrats and their allies are arguably treating judicial nominees worse.  For while the attacks were one-sided, the vote to defeat Judge Bork was at least bipartisan.  Today, Democrats and their allies make no such efforts to actually defeat nominees they do not like; instead, they attempt to obstruct and sully the character of nominees.

Take, for example, the case of Scott Palk of Oklahoma.  Palk was first nominated by President Barack Obama.  One would think his confirmation would be a shoe-in when he was re-nominated by President Trump, but instead Democrats dragged their feet and technically mounted a filibuster (which now means requiring 30 hours of debate).  This token opposition was all for an Obama nominee whom everyone knew was going to be confirmed and was confirmed last week with 79 votes in favor.

While delaying the confirmation of people like Palk is the worst kind of petty partisanship, it is not limited to delaying votes on the Senate Floor.  Take Senator Al Franken of Minnesota’s failure to follow basic Senate courtesy and return a blue slip—as his follow Democrat Minnesota Senator Amy Klobuchar did—on Eighth Circuit Court of Appeals nominee Justice David Stras of the Minnesota Supreme Court.

The blue slip has had varying meanings over the years, depending on the Chairman of the Senate Judiciary Committee at the time, but at its core it means an opportunity for home-state senators to be consulted and given an opportunity to express their opinions on judicial nominees.  Stras is known to Franken and he received a higher percentage of the vote from Minnesota voters than did Franken.

Senator Klobuchar and the majority of the voters in Minnesota all approve of Justice Stras, as does the liberal American Bar Association (ABA), which gave him its highest rating, “unanimously well-qualified.”   So why is Franken even trying to block him from getting a hearing?  Justice Stras is too conservative for Franken’s taste.

But Franken was not elected President and does not get to choose judges.  For years, Republican (and Democrat) senators have voted for qualified judicial nominees who did not have the same judicial philosophy as they did.  President Trump ran and won by clearly explaining that he would nominate judges in the mold of the late Supreme Court Justice Antonin Scalia.  Franken cannot block nominees because the non-lawyer Franken does not agree with the way they apply the law.

But it gets worse.  Franken at least stated a reason, albeit a bad one, for his opposition.  Oregon Senators Ron Wyden and Jeff Merkley are opposing Ryan Bounds for the Ninth Circuit because according to them, the nomination did not follow Oregon’s traditional bipartisan process.  The only problem is the bipartisan process was apparently a creation of the Oregon senators’ imagination as the judge that Bounds is nominated to replace said that she worked directly with then-President Bill Clinton and that a selection committee process did not exist.  By the way, one of the Oregon senators at the time was Ron Wyden, who did not object.

Unfortunately, partisanship is not the only ugly problem facing the confirmation of judges to an independent judiciary.  Another problem that is rearing its head is religious bigotry.   Judiciary Committee Ranking Member Senator Dianne Feinstein and Senator Minority Whip Dick Durbin attacked Professor Amy Barrett for her Catholic beliefs.  There is no place for such attacks on any nominee for any position, but sadly Senator Durbin has successfully used such bigoted attacks before.  In 2003 he helped lead the first successful judicial filibuster again Miguel Estrada because the very qualified Estrada was Hispanic.

Part of the reason for this discrimination is the issue of abortion and Democrats are seemingly turning to their allies in places like the ABA to oppose nominees for having personal pro-life beliefs.  Democrats apparently believe “pro-choice” does not mean an individual can personally choose to be pro-abortion or be pro-life.  Recently the ABA gave Nebraska lawyer and Eighth Circuit nominee Steven Grasz, who is well-respected and has impressive credentials, a “not qualified” rating in part because he is personally pro-life, even when he stated he could enforce the law that he personally disagreed with.  In a typical example of liberal fairness, an outspoken liberal law professor was assigned to be the lead investigator for Grasz, checked by a second investigator who is a San Francisco liberal and dedicated Democrat donor.  Lest anyone question its foregone conclusions, the ABA’s “not qualified” report does not include the reasoning or evidence for its offensive statements about Grasz.

Fortunately, Senate Judiciary Committee Chairman Chuck Grassley does not have unlimited patience with Democrats’ games and obstruction.  Thanks to the leadership of Chairman Grassley, 18 nominees are now on the floor awaiting a vote.  And the need is great.  There are still over 140 vacancies on the federal bench, with 64 classified as judicial emergencies.

Majority Leader Mitch McConnell has also tired of Senate Democrats’ partisanship and has made the confirmation of judges a priority, with four Circuit Court nominees to be confirmed by the end of this week.  As of publication, the new Judge Barrett of the Seventh Circuit and Judge Larsen of the Sixth Circuit have just been confirmed.

Despite the Democrats’ obstruction and delays, Chairman Grassley and Leader McConnell are keeping the process moving, understanding how important these principled nominees are to the American people.  Democrats have forced cloture votes on all confirmed judicial nominees from President Trump, compared to none at this point in the Obama, George W. Bush, Clinton, or Reagan administrations.  Of course, these cloture votes are simply a delaying tactic, since the Democrats abolished the filibuster for judicial nominations lower than Supreme Court in 2013.

Thirty years ago, Senate Democrats defeated Judge Bork with character assassination, but today Senate Republicans are standing up to Democrats’ false attacks, partisan games, and obstruction and helping to ensure an independent, non-partisan judiciary that respects the rule of law.  And that is what is upsetting the increasingly desperate Democrats.

Michael Thielen is executive director of the National Republican Lawyers’ Association.

Views expressed in op-eds are not the views of The Daily Caller.