GOP senators’ strategy works to ‘ pack’ courts
While Vice President Mike Pence and fellow Republicans accuse Democrats of plotting to “pack” the Supreme Court with additional members if they win next month’s election, there’s a Republican strategy already in effect — it could be labeled court-packing of a different sort — to fill scores of lifetime judgeships in the nation’s federal courts.
The seats on U. S. district and appellate courts became vacant when judges retired during President Barack Obama’s second term. But Senate Republicans, in most
cases, refused to consider Obama’s nominees — sometimes invoking Senate rules they’ve since repealed — and held the seats open for the next president, who turned out to be Donald Trump.
The impact was on view last weekend when the Fifth U. S. Circuit Court of Appeals in New Orleans reinstated Texas Gov. Greg Abbott’s order limiting official ballot dropoff boxes to one per county. All three judges on the panel were appointed by Trump, and two replaced judges who had retired in 2013 and 2015.
Their seats were still vacant because Texas’ Republican senators, John Cornyn and Ted Cruz, had made it clear they would block confirmation of anyone nominated by Obama, said Daniel Goldberg, legal director of the Alliance for Justice, a liberal advocacy group.
On Thursday, a Texas judge ruled in a separate case that the drop boxes must be reopened because Abbott’s order would needlessly expose voters to the coronavirus. The governor’s office is likely to appeal, and the state’s high court consists entirely of Republican appointees.
Closer to home, Obama nominated U. S. District Judge Lucy Koh of San Jose in February 2016 to succeed the recently retired Judge Harry Pregerson on the Ninth U. S. Circuit Court of Appeals. A majorityRepublican Senate Judiciary Committee recommended her confirmation, but Koh never got a Senate floor vote. She remains on the federal trial court, where she blocked Trump administration efforts to halt the 2020 census before the Supreme Court voted Tuesday to allow the shutdown.
Trump’s nominee for the appeals court seat, Daniel Collins, a Los Angeles attorney and former George W. Bush administration lawyer with a solidly conservative record, was confirmed on a partyline vote in May 2019. Last week, he dissented from the court’s ruling to block funding for Trump’s border wall, a case that is likely to return to the Supreme Court.
And Trump’s Supreme Court nominee, Amy Coney Barrett, has been involved in a similar episode. After a judge on the Seventh U. S. Circuit Court of Appeals in Chicago retired in February 2015, Obama sought to fill the vacancy in January 2016 by nominating Myra Selby, who had been the first African American and the first woman to serve on the Indiana Supreme Court. But Senate Republicans refused to consider her, and in May 2017 Trump named Barrett, a Notre Dame law professor with a history of opposing abortion, to her first judicial position.
Republicans followed the rules in each case, and never tried to expand any of the appeals courts. On the other hand, when retirements opened up three judicial seats on the influential U. S. Court of Appeals in Washington, D. C., in 2013, Republicans introduced a bill to eliminate those judgeships and shrink the court rather than allow Obama to fill the vacancies.
When the bill failed to pass, Republicans filibustered Obama’s nominees until November 2013, when Senate Democrats repealed the filibuster for lower federal courts. The Senate’s majority Republicans took the same step for Supreme Court appointments in 2017, allowing confirmation of Trump’s nominees over nearly unanimous Democratic opposition.
More recently, the Texas case, and others, have shown Republicans’ willingness to use current rules and political power to fill the courts with judges they consider sympathetic to their causes.
In 201516, Obama’s final years in office, the Republicancontrolled Senate confirmed only two of his nine appeals court nominees, the lowest confirmation total since 1898, said Carl Tobias, a University of Richmond law professor. Obama nominated 61 candidates to U. S. District Courts in those years and 18 were confirmed.
In comparison, Tobias said, a Democratic Senate confirmed 10 of President George W. Bush’s appellate nominees and 58 District Court candidates in his final years, 200708. Scores of additional judgeships remained vacant in 2016 because Obama realized nominations would be futile, prompting Trump to scoff two weeks ago that Obama “left me 128 judges to fill. You just don’t do that.”
“The seats remained unfilled and were a gift to Trump. And he now says the Dems were incompetent for not filling the vacancies,” said Sheldon Goldman, a retired political science professor at the University of MassachusettsAmherst who has written extensively on judicial appointments.
“It is the old game of ‘ heads I win, tails you lose,’ ” Goldman said. “Republicans are experts at courtpacking.”
Democrats make the same doublestandards argument against Barrett’s Supreme Court confirmation, noting that after Justice Antonin Scalia died in February 2016, Senate Republicans refused to hold hearings on Obama’s nomination of Judge Merrick Garland and said the next president should fill the vacancy. Republicans contend the current situation is different because the same party now holds the presidency and the Senate majority.
At the appellate level, perhaps the most immediate impact is in Texas, where polls indicate closerthanusual races in both the presidential election and Cornyn’s bid for reelection against Democrat MJ Hegar. Abbott, the Republican governor, issued an order Oct. 1 removing all dropoff boxes for absentee ballots except one in each county, including Harris County, whose population of 5 million includes the city of Houston.
U. S. District Judge Robert Pitman, an Obama appointee, ordered the boxes restored last Friday, saying their removal would make it harder for elderly and disabled Texans to vote and had no basis in election security.
On Saturday, a panel of the Fifth U. S. Circuit Court of Appeals issued a oneline order putting Pitman’s ruling on hold pending further proceedings in the case. The court issued its opinion Monday, saying Abbott’s order may have made voting “more inconvenient for some voters” but did not deny anyone the right to vote. In fact, the panel said, the governor had expanded voting rights by relaxing some previous deadlines for casting or delivering ballots.
All three panel members, Judges James Ho, Don Willett and Kyle Duncan, were nominated by Trump in September 2017 and later confirmed by the Senate on partyline votes. Ho’s predecessor had retired from active service in 2012, and Willett’s predecessor in 2013. But Obama never nominated their replacements because they would have faced certain vetoes on the Senate Judiciary Committee by Cornyn and Cruz, the state’s Republican senators, said Goldberg of the Alliance for Justice.
At the time, the committee’s longstanding rules allowed a homestate senator of either party to veto a president’s judicial nominee by withholding a “blue slip” approval notice. Republican committee chairmen repealed those rules after Trump took office, preventing Democratic members — including California’s Dianne Feinstein and Kamala Harris — from blocking the president’s judicial appointments in their state.
Goldberg said the Texas events mirrored recent developments in Florida, where voters in 2018 repealed a law that had permanently barred 750,000 formerly imprisoned felons from voting. Republicans then sponsored legislation to continue the voting ban until the former inmates paid their criminal fines and penalties, and a divided federal appeals court upheld the law last month.
That court, the Eleventh Circuit in Atlanta, had a vacancy in October 2013 when one of its judges, based in Alabama, retired. After more than two years of fruitless negotiations with the state’s Republican senators, Jeff Sessions and Richard Shelby, Goldberg said, Obama in February 2016 nominated U. S. District Judge Abdul Kallon, whose confirmation was predictably blocked.
Trump quickly filled the vacancy with Kevin Newsom, a former Alabama solicitor general who cast the deciding vote in the 64 ruling Sept. 11 upholding Florida’s voting ban.
“If Kallon was there instead of Newsom,” Goldberg said, “hundreds of thousands of people in Florida would have the right to vote.”