With Democrats set to take control of the Senate in January, Senate Republicans are confirming federal judges at a rapid pace this lame-duck session, but disputes between the White House and several GOP senators over who gets to pick nominees are slowing the process and have already forced one withdrawal.
Senate Republicans have confirmed 57 of President Donald Trump’s judicial nominees during his second term, according to Reuters, adding to the 234 confirmed during his first term, including three Supreme Court justices. But the confirmation window is closing fast, and disagreements over nominees in Arkansas, Texas and Oklahoma are testing the Senate’s long-standing custom of giving home-state senators influence over judicial picks for their states.
Under that custom, known as the “blue slip” process, district court nominees can be blocked from advancing if their home-state senators withhold approval. Oklahoma Sen. Alan Armstrong said the White House passed over several candidates his state’s delegation submitted in favor of its own choice.
“We put up a lot of really qualified candidates that we sent to the White House, and they basically ignored that and just put through their one,” Armstrong told Reuters.
Arkansas nomination withdrawn
The dispute has already changed at least one outcome. On Tuesday, the administration withdrew U.S. District Judge Lee Rudofsky’s nomination to the Eighth Circuit Court of Appeals after Arkansas Republican Sens. John Boozman and Tom Cotton opposed his selection. Trump replaced him with Arkansas Supreme Court Justice J. Cody Hiland, the candidate Boozman had favored. The Congressional Record confirms the withdrawal.
Two outgoing senators hold leverage
A bigger obstacle involves two Republicans on the Senate Judiciary Committee who are leaving office after the midterms: Sens. Thom Tillis of North Carolina and John Cornyn of Texas. Both have said they will block nominees who lack support from their home-state senators.
Tillis said the White House needs to show more respect for the Senate’s traditional role in the process, arguing that administration officials sometimes present a nominee as already decided and expect senators to go along.
“That’s not how it works here,” Tillis said. “They should expect they’re going to get this response.”
In Texas, Cornyn has not committed to supporting T. Elliot Gaiser, Trump’s nominee for a federal judgeship in Dallas. Gaiser currently leads the Justice Department’s Office of Legal Counsel and was selected without going through the screening process Texas senators have traditionally used. Without Cornyn’s blue slip, the nomination cannot move to its scheduled Judiciary Committee hearing.
Oklahoma seat in limbo
In Oklahoma, Armstrong initially backed Zach West, an attorney in the state attorney general’s office who has defended abortion restrictions and religious-school participation in public charter programs, but later withdrew his support. Tillis has joined the opposition, leaving West without enough committee votes to advance.
The timing matters because Armstrong is set to leave the Senate on November 30, when Republican Senator-elect Kevin Hern will take his seat. Hern could take a different stance on West’s nomination, but Tillis said he will keep opposing it as long as an Oklahoma senator objects.
“When I’ve got two Republicans from the state telling me to move on it, I move on it,” Tillis said. “If I have one or more asking me not to, then I’m not.”
Colorado nomination on deck
Senate Majority Leader John Thune has made judicial confirmations a top priority for the remaining weeks of Republican control. The Senate confirmed its first judicial nominee of the lame-duck session Thursday, with 23 more still pending. Among them is Colorado-based U.S. District Judge Daniel Domenico, whose nomination to the Tenth Circuit Court of Appeals is scheduled for a vote Monday.
A White House official told Reuters that the administration expects all pending judicial nominees to be confirmed before the end of the year. Federal judges serve lifetime appointments, and their rulings can affect immigration enforcement, executive authority, election law, religious liberty and federal regulation well beyond the term of the president who appointed them. Once Democrats take over the Senate in January, additional confirmations will face far steeper odds.
