A Republican senator on Wednesday appeared to corroborate Democrats’ complaints that the Trump administration has been trying to strong-arm its judicial picks through Congress instead of consulting with lawmakers to find mutually agreeable candidates.
Sen. John Neely Kennedy (R-La.) told his colleagues on the Senate Judiciary Committee that White House Counsel Don McGahn had been “very firm . . . to the point that he was on the scarce side, in one conversation, of being polite,” in informing him that the administration’s nominee to fill a vacant seat on the U.S. Circuit Court of Appeals for the 5th District was attorney Kyle Duncan — someone he had never met.
“Full credit: [McGahn] came back later and apologized,” Kennedy said. “But his firmness he did not relent on.”
Kennedy made his comments at a confirmation hearing for Duncan and 8th Circuit Court of Appeals nominee David Stras, whose candidacies have become a test for whether the GOP will prioritize the president’s judicial picks over achieving congressional consensus.
Traditionally, federal judge nominations do not receive congressional consideration unless the senators from affected states agree to consider the candidate. But neither Duncan nor Stras received every senator’s assent before committee chairman Charles E. Grassley (R-Iowa) scheduled their confirmation hearing.
Democrats have accused Grassley of applying a different standard for President Trump’s circuit court nominees than he did for those of former president Barack Obama, to help Trump load up federal bench vacancies with picks some members find objectionable.
The Judiciary Committee's top Democrat, Sen. Dianne Feinstein (Calif.), said Wednesday that Grassley had always waited for senators from affected states to agree to a nominee's candidacy before scheduling confirmation hearing when Obama was president. She accused Grassley of blindsiding Democrats with Wednesday's hearing and ignoring their requests to reconsider.
“The only difference is who sits in the White House,” Feinstein said.
Republican leaders warned earlier this year that they might curtail the practice of waiting for all affected senators to sign off on "blue slips" before scheduling a confirmation hearing for circuit court nominees. They argued that when multiple states are affected, one senator should not be able to hold up a process for political reasons. Grassley stressed on Wednesday that the vast majority of Judiciary Committee chairmen have made exceptions to the blue slip rule and that he felt senators had been given ample time to resolve their complaints about nominees with the White House.
Sen. Al Franken (D-Minn.), who says he was only informed, not consulted, about Stras’s nomination, accused the White House of regularly ignoring the time-honored practice of joining “with home state senators to identify nominees” and find “consensus candidates.”
Franken charged that the White House had “outsourced the job of identifying potential Supreme Court nominees” to the Heritage Foundation and the Federalist Society, two conservative organizations, instead of turning to lawmakers for their recommendations.
“I do not think that the Senate should cede its power to the executive branch,” Franken said.
Kennedy refused to comment when asked after the meeting whether he thought the Trump administration was routinely ignoring senators’ input when it came to judicial nominations. He noted to Duncan on Wednesday that he was surprised the nominee had indicated on his preliminary questionnaire that Kennedy supported his nomination when they were unacquainted, and challenged him to prove that he was “the second coming of Justice Holmes or Justice Scalia, and not the second cousin of somebody who is politically connected in the Washington swamp.”
Duncan made a point of apologizing to Kennedy for being iced out of the selection process.
“It sounds from your opening comments that you were disrespected in this process, and I deeply regret that,” Duncan told Kennedy on Wednesday. Kennedy appeared to be pleased by the gesture.