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Democrats Have More Leverage Than They Think to Fight Trump’s Judicial Appointments

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Next week is set to see the biggest fight over the federal judiciary since Brett Kavanaugh was confirmed to the Supreme Court in October. As the New York Times reported on Wednesday, the Senate is due to consider a Republican plan to cut the amount of debate time on district court judges from a maximum of 30 hours to just two hours. Senate Majority Leader Mitch McConnell is reportedly considering nuking the filibuster to push through this change, which would further speed up an already conveyor belt–like confirmation system that has allowed President Donald Trump to seat a record number of judges.

Meanwhile, the Senate is also due to vote on the nomination of four circuit court nominees who are particularly controversial because they have not received approval from their home state senators (in this case, all Democrats). This approval, traditionally referred to as a blue slip, is a system by which judicial nominations would historically not go forward without the approval of senators from the judges’ home states. (The term “blue slip” comes from the piece of paper that home state senators typically need to return to the Judiciary Committee in order for a nomination to go forward.) Republicans already effectively killed the blue slip process last year for circuit court nominations by allowing the confirmation of David Stras after one home-state Democratic senator did not return a blue slip, but this latest escalation will be unprecedented. If Washington’s Eric Miller is confirmed to the 9th Circuit, for example, it will be the first time in 100 years that a judicial nominee will have been confirmed without the blue slips of both home state senators.

Ahead of this drastic set of escalations, I spoke with Chris Kang, who ran judicial nominations for the Obama White House for more than four years. Kang argues that given these recent escalations, Democratic senators should band together and attempt to force Republicans to back down from this latest escalation. He explained how they might do this in the following conversation, which has been edited and condensed for clarity.

Jeremy Stahl: Could you please walk me through how blue slips worked when you were working on judicial nominations as part of the Obama administration?

Chris Kang: When I was in the Obama White House, I worked for two and a half years in the Office of Legislative Affairs, and in that capacity I worked with Senate offices and with senators to try to find consensus judicial nominees. After that I worked in the White House counsel’s office for four years where I ran the entire judicial nomination process from the selection and vetting to the confirmation of nominees.

The one throughline for the entire Obama administration, whether it was Democratic Sen. Patrick Leahy as chairman or Republican Sen. Chuck Grassley as chairman, was that unless a nominee had support from both home state senators, that nominee would not move through the Judiciary Committee.

Was this the case for circuit court........

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