Tomorrow, the Senate Judiciary Committee will hold a hearing on two circuit court nominees: John Bush for the Sixth Circuit and Kevin Newsom for the Eleventh Circuit. Many concerns have been raised about these nominees (as well as the third nominee on the hearing, Damien Schiff for the Court of Federal Claims), but setting aside the merits for just a moment, we can’t lose sight of the process, as Chairman Grassley casually rejects another Senate norm in the interest of rubberstamping President Trump’s judicial nominees.
It has long been the practice of the Senate Judiciary Committee to consider only one circuit court nominee per nomination hearing. Exceptions are rare and usually have extenuating circumstances: the Judiciary Committee held hearings for more than 60 of President Obama’s circuit court nominees, and held a hearing with two circuit court nominees only three times—each time with the support of the minority party.
As then-Ranking Member Sessions explained—in agreeing to move forward—at a joint hearing for Fourth Circuit Judges James Wynn and Albert Diaz, both of North Carolina:
We will have two nominees today for hearing, which is unusual and not something we do often, but it is something we were requested to do. And the nominees sort of have come forward together for the same circuit and the desire, I understand, is to keep them together. So I think under those circumstances, I have agreed to go forward with both nominees today and I look forward to a good hearing.
That hearing also was supported by home-state Senator Burr, then in the minority, and both nominees were confirmed unanimously.
Similarly, in May 2014, the Judiciary Committee held a joint hearing for Eleventh Circuit Judges Julie Carnes and Jill Pryor, both of Georgia, with the agreement of then-Ranking Member Grassley and home-state Senators Chambliss and Isakson, then in the minority. Both nominees were confirmed unanimously.
The third instance of a joint hearing was at the request of Republican Senators, who boycotted the first hearing for Seventh Circuit Judge David Hamilton and then requested a second hearing. Then-Chairman Leahy accommodated this request and asked Judge Hamilton to appear at a hearing with Judge Andre Davis, nominated to the Fourth Circuit.
Each of these three exceptions was made in consultation with—and the support of—the Committee’s Ranking Member. They did not short-circuit the vetting process or rush through potentially controversial nominees.
Chairman Grassley could honor the established Judiciary Committee process by simply holding a hearing for one of the two circuit court nominees in two weeks, instead of cramming them onto the same hearing tomorrow. And there is no reason to rush:
- The Sixth Circuit vacancy has been open for less than four months.
- Senators Sessions and Shelby held the Eleventh Circuit vacancy open for years, including blocking Judge Abdul Kallon’s nomination by refusing to return their blue slips.
- And Senator Cotton blocked nominees to the Court of Federal Claims for two years because he believes that the vacancies do not need to be filled.
The norms and practices of the Senate Judiciary Committee exist for a reason: to ensure a fair and thorough vetting of nominees to lifetime appointments for some of the most important positions in our democracy.
Hopefully tomorrow’s hearing will be the exception, rather than the new normal. We can disagree whether particular individuals meet the threshold to serve as judges, but we at least should agree that the positions themselves—and the Senators’ constitutional responsibility—require a deliberate process, such as the one the Judiciary Committee has followed for years.