Se­nate trade-off: More Obama judges, Trump gets nom­i­nees

Daily Local News (West Chester, PA) - - NEWS - By Mary Clare Jalonick

WASH­ING­TON >> Repub­li­cans are glee­ful over Demo­cratic-en­gi­neered rule changes that will make it eas­ier for President-elect Don­ald Trump to get his Cab­i­net nom­i­nees through the Se­nate. Yet Democrats see a last­ing up­side from what they did: al­low­ing President Barack Obama to shape the fed­eral ju­di­ciary for years to come.

Democrats in 2013 scaled back the power of the Se­nate mi­nor­ity to throw road­blocks in front of a president’s nom­i­nees. In the years that fol­lowed, the Se­nate con­firmed al­most 100 fed­eral judges nom­i­nated by Obama, bring­ing to 329 the num­ber of ju­di­cial nom­i­nees con­firmed dur­ing Obama’s term in of­fice.

The im­pact of those life­time ap­point­ments will be es­pe­cially felt on the fed­eral ap­peals court in Wash­ing­ton, of­ten called the sec­ond most im­por­tant court af­ter the Supreme Court be­cause it hears many cases on en­vi­ron­men­tal and other reg­u­la­tions. Judges picked by Repub­li­can presidents had dom­i­nated the court, but now Demo­cratic ap­pointees hold a 7-4 ad­van­tage. Obama has put four judges there, in­clud­ing three af­ter the rules changes.

Out­go­ing Se­nate Demo­cratic leader Harry Reid en­gi­neered the changes, dubbed the “nu­clear op­tion” be­cause of the in­ten­sity they could add to par­ti­san­ship, af­ter Repub­li­cans blocked many of Obama’s nom­i­nees. Even with a Repub­li­can ma­jor­ity in the Se­nate, the Ne­vada Demo­crat says he would do it again.

“The nu­clear op­tion lets presidents show their true col­ors and guar­an­tees a nom­i­nee a fair up-or-down vote,” Reid said in a state­ment this week. “If Repub­li­cans want to go on record sup­port­ing rad­i­cals, that’s their de­ci­sion and they will have to live with it.”

Nan Aron, the president of the lib­eral ju­di­cial ad­vo­cacy group Al­liance for Jus­tice, says that if the rules hadn’t been changed, Trump would now be fill­ing seats on the D.C. cir­cuit and other courts.

“They will un­doubt­edly hear chal­lenges to Trump’s reg­u­la­tory agenda, chal­lenges to ex­ec­u­tive or­ders,” Aron said.

In Novem­ber 2013, the rules changes re­duced the num­ber of votes needed to end fil­i­busters, or pro­ce­du­ral road­blocks, on nom­i­na­tions from 60 to a sim­ple ma­jor­ity, usu­ally 51. Repub­li­cans are on track to hold 52 seats next year, mean­ing they won’t need any Demo­cratic votes to con­firm the new Cab­i­net — or con­firm fed­eral judges whom Trump him­self is ex­pected to nom­i­nate.

At the time of the changes, Repub­li­can leader Mitch McCon­nell warned Democrats that the strat­egy could back­fire.

“I say to my friends on the other side of the aisle, you will re­gret this, and you may re­gret it a lot sooner than you think,” McCon­nell said on the Se­nate floor.

Sen. Chuck Schumer, the New York Demo­crat who will re­place Reid as mi­nor­ity leader, says the pres­sure will now be on Repub­li­cans, “many of whom had se­ri­ous qualms with the (pres­i­den­tial) cam­paign that was run, to de­ter­mine whether these nom­i­nees will be fit to lead these agen­cies.”

Still, Democrats will feel the con­se­quences if they se­ri­ously op­pose any of Trump’s nom­i­nees. When he chose Alabama Sen. Jeff Ses­sions to be at­tor­ney gen­eral last week, some Democrats ex­pressed im­me­di­ate con­cern. Ver­mont Sen. Pa­trick Leahy said that he dis­agreed with Ses­sions “par­tic­u­larly on civil rights, vot­ing rights, im­mi­gra­tion and crim­i­nal jus­tice is­sues.”

For Trump’s nom­i­nees to run into trou­ble, they will have to anger fel­low Repub­li­cans. That may be the case for his nom­i­nee for CIA di­rec­tor, Kansas Rep. Mike Pom­peo. Pom­peo has re­jected ac­cu­sa­tions that U.S. in­tel­li­gence and mil­i­tary per­son­nel were “tor­tur­ers” for harshly in­ter­ro­gat­ing ter­ror sus­pects cap­tured af­ter 9/11, say­ing they were “pa­tri­ots.”

Repub­li­can Sen. Rand Paul of Ken­tucky said on CBS’s “Face the Na­tion” last Sun­day that he wants to know more about Pom­peo’s views on tor­ture and also whether he sup­ports ex­pand­ing pow­ers of the Na­tional Se­cu­rity Agency.

“He’s go­ing to have to also an­swer, to my lik­ing, whether or not he’s still for tor­ture, whether or not he’s for wa­ter­board­ing,” Paul said. “That’s im­por­tant.”

Democrats will still have the power to fil­i­buster one nom­i­na­tion — whomever Trump chooses to re­place the late Supreme Court Jus­tice An­tonin Scalia. McCon­nell said last week that he wouldn’t an­tic­i­pate yet that Democrats would try to block Trump’s nom­i­nee “or what we might do in re­ac­tion to that.”


Se­nate Mi­nor­ity Leader Harry Reid of Ne­vada speaks dur­ing a news con­fer­ence Nov. 16 on Capi­tol Hill in Wash­ing­ton.

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