Since President Trump resumed office, leftists have run to the courts in a desperate attempt to stop — or, at the very least, stall — his agenda. To defeat this lawfare, President Trump needs the Senate’s help to put constitutionalists on the bench. Democrat senators’ obstruction is unsurprising; not even one has voted for one of President Trump’s appellate court nominees. Many Republican senators, however, are lagging in streamlining nominations. The most serious breakdown is in filling district court vacancies in deep-red states, especially Texas, Oklahoma and Kansas. With the midterms rapidly approaching, this glacial pace must accelerate in short order.
District courts are the engines of the federal judiciary, and vacancies there create immediate and tangible harm. These courts handle the bulk of federal litigation, from immigration to criminal prosecutions to constitutional challenges. Yet confirming district judges often proves harder than confirming Supreme Court justices. The problem lies in the blue-slip process. Home-state senators have a de facto veto on district court nominees, U.S. attorney nominees and U.S. marshal nominees.
For over a century, U.S. senators have had the power to hand-select the U.S. attorneys who could prosecute them, U.S. district judges who could oversee their trials, and U.S. marshals who could escort them to prison. Senators will never give up this veto power. Sen. Thom Tillis of North Carolina, a lame-duck Republican who sits on the powerful Senate Judiciary Committee, made it crystal clear that he will oppose any nominee who lacks support from both home-state senators. Senate Judiciary Committee Chairman Chuck Grassley can do nothing about blue-slip obstruction when even one committee Republican can team up with Democrats to block any nominee.
There are roughly 15 district court vacancies in states with at least one Democrat senator. Because the blue slip is not going anywhere, it is unlikely that President Trump can fill many of these vacancies. Democrats are more obstructionist than ever. They caused the longest government shutdown in our history just a few months ago.
The far more troubling problem is the sheer number of vacancies in states represented by two Republican senators. Staggeringly, there are nearly two dozen district court vacancies in red states (i.e., states with two Republican senators). The most dire vacancy crises lie in Texas, Oklahoma, and Kansas. There are seven vacancies throughout Texas’ several judicial districts, for example. Texas deals with a massive amount of immigration litigation because it is a border state. There is no excuse for a deep-red state like Texas, which President Trump won by 14%, to have seven vacancies.
Texas sadly is not alone when it comes to an unacceptably slow pace in filling vacancies. Other deep-red states combined have over a dozen: one each in South Carolina, Louisiana, Alaska and Alabama; two each in Ohio, Oklahoma and Florida; and three in Kansas. President Trump won each of these states by double digits and most by over 20%. These states deserve judges who are strong constitutionalists in line with President Trump’s vision of the law.
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If Senate Minority Leader Chuck Schumer reassumes the position of majority leader next year, he will grind the Trump judicial-confirmations train to a screeching halt. Grassley is a workhorse, so it is certain that he will expeditiously streamline President Trump’s nominees through the process this year. Senate Majority Leader John Thune has demonstrated remarkable efficiency in getting nominees swiftly confirmed. No judicial nominees remain on the Senate Executive Calendar. Only four remain in the Judiciary Committee, and they just had their confirmation hearing last week, meaning they will be on the floor and ready for a vote by the end of the month. Leader Thune and Grassley cannot process nominations if there are no nominees.
Republican home-state senators need to focus on this crucial task and understand the urgency of the moment. Since the Senate sits only 3.5 days a week in most weeks, floor time is limited. Should a Supreme Court vacancy arise, Judiciary Committee time and resources must be invested overwhelmingly in confirming President Trump’s nominee. Delay is a recipe for disastrous defeat, and it must end instantly.
Republican senators must get moving in filling judicial vacancies.