Elections have consequences. Presidents get to pick the judicial nominees, and if they’re qualified it’s the Senate’s job to confirm them. I’ve hammered Republicans over this many times here. When Senators block qualified, mainstream, honorable judicial nominees, it hobbles our courts and it poisons our democracy.
Donald Trump won. The Third Circuit, like federal courts around the country, has vacant judgeships it urgently needs filled. If Trump chooses to fill those empty seats with staunch conservatives, he can.
For our government to work right, Democratic senators should not use their blue-slip power to block qualified conservative circuit nominees, they shouldn’t launch overheated public campaigns attacking them, and they should not vote against confirming them. And qualified doesn’t mean centrist.
Senate Democrats should do for Trump what they did for the second President Bush: confirm Third Circuit nominees who are rock-solid conservatives. The Senate confirmed Judge Hardiman by a vote of 95-0. It confirmed Judge Jordan 91-0. It confirmed Judge Chagares 98-0. It confirmed Judge Fisher, a recent Republican candidate for governor, by unanimous voice vote. After Fisher’s confirmation, liberal then-Governor Ed Rendell said, “This is the way the process should work. It wasn’t viewed as a partisan thing. It was viewed as getting a very qualified person onto a very important court.”
That is how it’s supposed to work, and it’s how it should work over the next four years, too. Many think Trump is uniquely unfit to be president (and I do too), but that is quite irrelevant to whether his judicial nominees are qualified.
But here’s the problem.
Senate Republicans have spent the past two years breaking those rules, blocking President Obama’s qualified judicial nominees to a historic degree. As Russell Wheeler of Brookings has painstakingly documented here and here, Senate Republicans “veered from the precedents created by recent similarly situated Senates.”
Here in the Third Circuit, that meant Judge Sloviter’s seat took two and a half years to fill. Worse, Judge Rendell’s seat has sat empty since July 2015 and Judge Fuentes’s seat since July of this year. Those were President Obama’s judgeships to fill.
So what do Senate Democrats do now? If they play by rules the Republicans spent the last two years thumbing their noses at, wouldn’t Democrats be unilaterally disarming? Of course they would. Pragmatic Democratic leaders will say Republicans changed the rules, so now we’ll play by their rules. Any other approach would make them chumps.
So Democrats will do all they can to continue the obstruction, and our judiciary and our democracy are weakened some more.
There’s a solution. If Republicans want Democrats to play by the old rules for the next four years — and they should — then Republicans should hurry up and play by the old rules now.
For the Third Circuit, that means Senate Republicans should confirm Rebecca Haywood now. She’s an exceptional lawyer and superbly qualified. I’ve seen nothing to suggest she’s even particularly liberal — as a career Assistant US Attorney, she’d likely slot into the court’s moderate center alongside Chief Judge Smith and Judges Greenaway, Vanaskie, and Shwartz. And confirming her would still leave an open seat for Trump to fill, with another (Judge Fisher’s) likely soon to come. Maybe more.
Confirm Haywood now, and other qualified nominees like her, and then fill the courts with qualified Trump nominees in the years ahead. Following the rules now would benefit the federal courts, the nation — and Republicans.