Blue Slips

While the Gorsuch opposition bravely continues, even in the face of likely defeat, what concerns me about as much as installing a young conservative activist judge on the Supreme Court is the sheer number of lower-court vacancies that the Judiciary Committee is poised to fill. SCOTUS only takes about eighty cases per year, which means that for the 280,000 yearly civil cases, 100,000 yearly criminal cases, and 55,000 yearly appeals, the last resort is likely to be a judge in a lower court.

Not counting the Scalia seat, there are currently 125 vacancies in the federal courts, with another 11 scheduled. That is, of the 880 federal judicial seats in the country, nearly one out of six is currently waiting to be filled. By comparison, both Bush 43 and Obama filled only 330 vacancies each over eight years.

Obama had a chance to fill far more seats, of course, which is one reason why there are so many vacancies. However, of the 331 judges he appointed, only 22 of them were confirmed during his last two years in office. Republicans, once they gained control of the Senate, did not simply block Merrick Garland’s confirmation but managed to severely slow the pace of confirmations for lower courts as well. In Obama’s last year in office (1/20/16-1/20/17), only seven Article III judges were confirmed, zero to circuit courts of appeals. As a result, 102 of those 125 vacancies are from prior to Election Day, and 75 of the 125 are actually OLDER vacancies than Justice Scalia’s seat, which has now remained open for nearly 14 months.

I note this partially because only one of those lower-court vacancies has a nomination so far. Eastern District of Kentucky judge Amul Thapar is nominated to be elevated from EDKY to the Sixth Circuit (which would, of course, create another vacancy). Given the way that judicial appointments work, Thapar’s nomination being the only one managed within the first 75 days of the administration is not all that surprising. Thapar hails from Kentucky, and Kentucky’s two senators are Rand Paul, who is likely to embrace Thapar’s bona fides, and McConnell, who has the power to shepherd Thapar through smoothly. Thapar will thus likely get to a hearing and a full floor vote smoothly, creating a modest win for Republicans without having to worry about any drama over the blue-slip process.

Blue slips are, at their most powerful, essentially an individual senator’s power to veto a home-state judicial nominee. In recent practice, the failure to return a blue slip to Judiciary Committee chair Chuck Grassley has resulted in no action being taken on a nominee. (Twitter darling du jour Bob Menendez faced criticism over not returning a blue slip on one of Obama’s nominees in 2012 for seemingly self-interested reasons.) Take the case of Luis Felipe Restrepo, a judge now installed on the Third Circuit, who was first nominated in November 2014 to that opening. Pat Toomey refused to return his blue slip, delaying Restrepo’s initial hearing for several months. Restrepo did not receive his hearing until June 2015 and did not get confirmed until January 11, 2016.

So the question is therefore as follows: Will Grassley continue to honor the same blue-slip procedure he did during the Obama administration? Thapar will not give us that answer, but the majority of the remaining vacancies (roughly 60%) are in states with at least one Democratic senator. For all of the unclean hands that may exist regarding the filibuster and the nuclear option, Senator Leahy, who was Judiciary Committee chair for much of Obama’s tenure, allowed Republican senators to withhold their blue slips freely both before and after Democrats triggered the nuclear option. If Grassley does not allow the same, it should receive the same attention that Garland did.

Light is the best disinfectant.

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