Senate's Out? Nobody's Around? Perfect Time To Advance Trump's Court Picks, Says GOP.

"Republicans are undermining all customs of the Senate,” one expert said.
Nothing to see here. Just pushing through some lifetime judicial nominees while everybody is gone.
Nothing to see here. Just pushing through some lifetime judicial nominees while everybody is gone.
Aaron Bernstein / Reuters

WASHINGTON ― The Senate is in recess and nobody is around, which means Republicans think it’s the perfect time to hold confirmation hearings for President Donald Trump’s controversial nominees to lifetime courts seats.

Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, has held two hearings in the past week, despite virtually every senator being back home ahead of the Nov. 6 elections. Even Grassley wasn’t at his hearings: Sen. John Kennedy (R-La.) chaired the first one, last week, and Sen. Mike Crapo (R-Idaho) chaired Wednesday’s hearing.

Not a single Democrat could attend either hearing. Only one other Republican, Sen. Orrin Hatch (Utah), was present. That means, between those two hearings, that three of Trump’s circuit court nominees and seven of his district court nominees sailed through without any real questions. The committee will likely vote to advance their nominations sometime after the elections.

Not only are Republicans breaking from precedent by holding hearings while the Senate is in recess before an election, but their brazenly partisan move only intensifies the already toxic environment on Capitol Hill that couldn’t get much worse after this month’s ugly Brett Kavanaugh confirmation fight.

“Today’s hearing and last week’s were jokes,” said Carl Tobias, a University of Richmond law professor and expert on judicial nominations. “No Democratic senators and two GOP senators and no real questions asked?”

In his opening remarks in last week’s hearing, Kennedy read aloud a statement from Grassley suggesting that the top Democrat on the committee, Sen. Dianne Feinstein (Calif.), had given the green light to move forward with hearings without Democrats.

“The ranking member not only agreed to hold hearings on Oct. 10, Oct. 17 and Oct. 24, but she also specifically agreed not to object to the timing of these hearings,” Kennedy said.

That’s not so, says Feinstein spokesman Tom Mentzer.

“We were scheduled to be in session at that point,” Mentzer told HuffPost. “At no time was there an agreement to do this during recess.”

Feinstein, along with every other Democrat on the committee, made it clear last week that they weren’t on board with this. They all signed a letter to Grassley urging him to postpone any hearings until after the elections, when everyone would be back and could ask questions of the judicial nominees up for lifetime seats on federal courts.

“Holding hearings during a recess, when members cannot attend, fails to meet our constitutional advice-and-consent obligations,” their Oct. 15 letter says. “We respectfully request these hearings be postponed until after the recess.”

Eric Miller, a nominee to a lifetime seat on a U.S. circuit court, has built a career out of fighting tribal protections. Guess he won't face any questions about that!
Eric Miller, a nominee to a lifetime seat on a U.S. circuit court, has built a career out of fighting tribal protections. Guess he won't face any questions about that!
ALM Media

Grassley spokesman Taylor Foy said Wednesday that the hearing schedule was set weeks ago, and that Feinstein did not make her agreement contingent on the Senate being in session. He pointed to a letter Grassley sent to committee Democrats last week saying he was tired of postponing hearings.

“It would be unfair to nominees to change the schedule at the last minute after they’ve made their travel arrangements to Washington for their hearing,” said Foy.

So which nominees are getting a free pass on their confirmation hearings?

Eric Miller is one. The 43-year-old attorney is a nominee to the U.S. Court of Appeals for the 9th Circuit, and he’s strongly opposed by national and local tribal organizations over his long career of fighting tribal interests and sovereignty.

“Our concern is that he chose to build a law practice on mounting repeated challenges to tribal sovereignty, lands, religious freedom, and the core attribute of federal recognition of tribal existence,” reads an August letter to Grassley and Feinstein from the National Congress of American Indians and the Native American Rights Fund. “His advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.”

Miller’s law firm has developed such a reputation for going after tribal rights that one native leader described the firm, Perkins Coie, as the go-to destination for jurisdictions that want “to fight an Indian tribe.”

“Today’s hearing and last week’s were jokes.”

- University of Richmond law professor Carl Tobias

Allison Jones Rushing, a nominee to the 4th Circuit, got her hearing too. The 36-year-old lawyer was a legal intern at the Alliance Defending Freedom, which the Southern Poverty Law Center has classified as a “hate group,” and she mentored people through ADF’s controversial Blackstone Legal Fellowship program.

As reported by Rewire in 2013, the program focuses on “fighting for the criminalization of abortion; against the rights of LGBT people; for so-called religious liberty (which often comes in the form of defending clients who wish to discriminate against gay people based on their religious beliefs); and for organized Christian prayer in government or public school settings.”

Rushing also argued in a 2013 panel that there “were both moral and practical” reasons for creating the Defense of Marriage Act, the former federal law that banned same-sex marriage. She frequently referenced Supreme Court Justice Antonin Scalia’s opinion that the 2013 ruling that struck down part of DOMA departed from “traditional” concepts of marriage and morality.

Republicans strayed from another committee tradition by moving forward with Miller’s nomination without having blue slips from either of his home-state senators, Maria Cantwell (D-Wash.) and Patty Murray (D-Wash.). Blue slips are literally blue pieces of paper that senators turn in to signal they are ready to move forward with a nominee, who typically would not move forward without them. Grassley has been ignoring that tradition.

These are just the latest examples of “the institutional breakdown in the Senate” since Republicans took control, said Tobias. The GOP has also broken from tradition by advancing judicial nominees without waiting for the American Bar Association to rate their qualifications, and by packing multiple circuit court nominees into the same hearing.

It’s all part of a broader plan by Senate Majority Leader Mitch McConnell (R-Ky.) to jam through as many nominees as possible to fill up the federal courts with conservative lifetime judges. His hardball tactics have paid off, but at the cost of blowing up Senate traditions and eroding goodwill between the parties.

“Republicans are undermining all customs of the Senate,” Tobias said. “Someone needs to halt the downward spiraling selection process.”

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