Senator Jeff Flake (R-AZ), one of the most prominent Republican critics of President Trump, has stated that he “and a few other senators” plan not to vote on any more federal judicial nominations until Congress acts on other issues:
“I do think that unless we can actually do something other than just approving the president’s executive calendar, his nominees, judges, that we have no reason to be there,” Flake said. “So, I think myself and a number of senators, at least a few of us will stand up and say let’s not move any more judges until we get a vote for example on tariffs.”
“The Senate ought to bring legislation to the floor that says hey, we’re going to push back here,” Flake said. “The European Union exporting cars to the U.S. does not represent a national security threat.”
Senator Flake is right about the need for Congress to step up and do its job in a rigorous and thoughtful manner. But it’s a damning indictment of that body that it cannot simultaneously govern the country and approve judicial nominees. Meanwhile, the federal court system continues to operate with many fewer judges than it believes necessary to do its work properly.
Supreme Court confirmation hearings for Neil Gorsuch begin today with the introduction of the nominee by his home state senators, Michael Bennett and Cory Gardner of Colorado. It is a nice bipartisan tradition for the home-state senators to introduce all federal judicial nominees, presumably dating back to a time when the rest of the Senate was not assumed to be familiar with a candidate. While almost all post-Robert Bork Supreme Court hearings have been contentious at times — usually unnecessarily so — it is a nod to decorum that the Senate still begins every hearing with such a welcoming gesture.
Home-state bipartisanship in judicial selection is not just a matter of courtesy. Senators from many states have developed bipartisan screening committees to help them recommend qualified candidates for lower federal judgeships to the President. These screening committees review the qualifications of those interested in judgeships on federal district courts and circuit courts of appeal, and pass the names along to the home state senators, who then pass along names to the President. While the President has ultimate discretion in choosing a nominee for any Article III judgeship, the use of screening committees effectively pre-ratifies the candidate, and helps ensure a much smoother confirmation process. The Supreme Court represents a special circumstance where screening committees are not used, but we can hope that both President Trump and the Senate will continue to rely on them where appropriate in considering lower court nominees.
We will be following the Gorsuch hearings this week, with commentary to follow on how the hearings reflect and impact the current relationship between Congress and the courts.