White House steps up judicial confirmation efforts after slowdown

In today’s edition …  What we’re watching: Deadline for Alito and Thomas’s financial disclosures … How Donald Trump tried to undo his loss in Georgia in 2020 … but first …

On the Hill

White House steps up judicial confirmation efforts after slowdown

The White House is redoubling its efforts to nominate and win confirmation for as many judges as possible after hitting an unwelcome milestone last month: The Senate has confirmed fewer judges since President Biden took office than it had at this point during President Donald Trump’s tenure.

Biden is only slightly behind.

As of Aug. 9, the Senate has confirmed 140 judges since Biden took office, including Supreme Court Justice Ketanji Brown Jackson, compared with 146 at this point in the Trump administration, according to data compiled by the American Constitution Society (ACS), a liberal judicial advocacy nonprofit organization.

Still, the slowdown comes after Biden moved judicial nominees through a closely divided Senate at the fastest pace in decades during his first years in office.

Senate Majority Leader Charles E. Schumer (D-N.Y.) boasted in February after senators approved Biden’s 100th judicial nominee that the “Senate has confirmed more judges by this point in a president’s term than either of the previous two administrations.”

Why the holdup?

The slowdown was not unexpected. We previewed this bubbling tension in January.

Tradition — not a Senate rule — allows senators veto power over a president’s nominees for district court judges in their home states, using a form known as a “blue slip.” Most of the district court judges confirmed in Biden’s first years in office were in states with two Democratic senators, who worked with the White House relatively easily.

But those vacancies are drying up. Of the 56 current and future district court vacancies without nominees, 40 are in states with at least one Republican senator.

• In an interview, Phil Brest, the White House senior counsel in charge of nominations, said he expected the Senate to confirm at least as many judges by the end of Biden’s term as the 234 confirmed during Trump’s presidency.

“And with that time horizon, I really do think we can meet, if not exceed, Trump’s numbers,” Brest said.

One possible slowdown could be if any Democratic senators miss time due to illness or other reasons, like Sen. Dianne Feinstein (D-Calif.) did earlier this year.

‘A real shame’

Russ Feingold, a former Democratic senator from Wisconsin who served on the Senate Judiciary Committee and now leads ACS, said he was concerned that Biden and the Senate had fallen behind Trump’s pace of confirmations. 

The courts have become an increasingly crucial venue for resolving policy disputes, and Democrats want to have as many of their picks on the bench as possible, rather than let Trump nominees play an outsize role.

“We at ACS have been the first ones in line to praise them for the tremendous progress that made the first couple of years,” Feingold said in an interview.

He urged Biden to make more nominations and lamented that Schumer didn’t shorten or cancel the Senate’s five-week summer recess to work through the backlog of nominees who haven’t been confirmed. Instead, the Senate will return with ground to make up.

“I think that’s a real shame,” Feingold said.

Others expressed less worry.

“It’s a little concerning,” said Jake Faleschini, the program director for justice at the Alliance for Justice, another liberal judicial advocacy group. But he added that he had “no doubt that they would be able to both catch up and jump ahead of the Trump administration by the end of this year.”

Blue slip blues

Biden’s biggest roadblock is the blue slip, said Christopher Kang, who worked on judicial nominations in President Barack Obama’s White House and is now chief counsel at Demand Justice, a liberal judicial group that has called for scrapping blue slips.

“We’re starting to have to rely on the good faith of people like [Republican senators] Josh Hawley and Ted Cruz, and I just don’t see the path forward,” Kang said. 

(There are eight current judicial vacancies in Texas and three in Missouri.)

Most blue slip battles play out behind the scenes.

One exception is Scott Colom, a district attorney whom Biden nominated in October to a district court judgeship in Mississippi.

Sen. Roger Wicker (R-Miss.) returned his blue slip, but Sen. Cindy Hyde-Smith (R-Miss.) told the White House in April that she would not do so, citing concerns about Colom. The White House hasn’t pulled Colom’s nomination, and a Senate Judiciary Committee aide who spoke on the condition of anonymity to describe private deliberations said Democrats were “still trying to find a path forward.”

‘There are ways to slow down the process’

Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has defended blue slips, while at the same time warning that his patience with Republican obstruction is limited.

“I support the blue-slip process, but I’ve said to the Republicans that unless they engage in this process in good faith, I’m not going to be held to that standard,” Durbin told Leigh Ann last month in a Washington Post Live interview.

Durbin is under immense pressure to toss the blue-slip tradition. 

Liberal groups have sent him letters calling for it to be abolished, and the New York Times Editorial Board said Durbin alone can get rid of it. 

Last month, Derrick Johnson, president and chief executive of the NAACP, wrote an opinion piece in Durbin’s home city newspaper that the chairman’s support for blue slips was allowing Republicans to block “qualified nominees of color from receiving a fair hearing and a vote.” The Congressional Black Caucus has told Durbin the same in at least one meeting, and House Democratic Leader Hakeem Jeffries (D-N.Y.) said Durbin should scrap the tradition. 

If Democrats were to get rid of blue slips, Republicans could retaliate by slowing the confirmation process the same way that some Republican senators have blocked many executive branch nominations. 

“There are a lot of procedural mechanisms that can be abused, there are a lot of levers that can be pulled that have not been pulled yet, both in committee and on the floor,” the Judiciary Committee aide said. “There are ways to slow down the process, and it’s already a slow process.” 

• The Judiciary Committee is planning to hold a judicial nomination hearing the first week that the Senate is back in September, and the aide said there could be as many as 30 judicial nominees teed up and awaiting confirmation votes on the Senate floor by the end of the month.
• “I’m very pleased at the pace we’ve set,” Schumer said in a statement to The Early. “And we’re not stopping. We’re going to build on our history of confirming more judges to make the judicial system more reflective of our country.”
• Most of the judges the Senate has confirmed have been women and most have been people of color, according to Schumer’s office. 

Brest, the White House lawyer leading work on nominations, said he expects more district court nominees in states with at least one Republican senator to be included in upcoming rounds of nominations.

“Historically, district court judges have been viewed as so critical to the administration of justice that senators have treated the district court as less of a political football,” Brest said. “I hope that we are getting back to a place where that’s the case. And I do think that you’ll see some meaningful progress in the fall.”

What we're watching

At the White House

This week marks the first anniversary of the Inflation Reduction Act (IRA), the Democrats’ climate change and health-care law. 

Tuesday: President Biden will travel to Milwaukee to tout the bill as part of his “Bidenomics” plan to build the economy through the middle class. 

Wednesday: Biden will deliver remarks at the White House on the anniversary of the day he signed the IRA into law. 

Friday: Biden will welcome South Korean President Yoon Suk Yeol and Japanese Prime Minister Fumio Kishida to the Camp David Trilateral Summit. The trio will hold a joint news conference after a trilateral meeting.

TBD: We’re watching to see whether Biden will announce a trip to Maui this week following devastating wildfires that have killed at least 93 people, making them the deadliest in modern U.S. history. When asked by reporters about such a trip, Biden said, “We’re looking at it.”

At the Supreme Court

Today is the deadline for Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. to file their annual financial disclosures. The Administrative Office of the U.S. Courts confirmed that the pair requested extensions in June, when disclosure reports filed by their colleagues were posted on the court system’s website. 

We’re waiting to see if Thomas reports any additional luxury travel and real estate deals with real estate billionaire Harlan Crow and whether Alito reports any additional luxury trips he has taken.

The campaign

How Donald Trump tried to undo his loss in Georgia in 2020

Trump could be indicted this week by a Fulton County grand jury regarding his efforts to overturn the results of the 2020 presidential election in Georgia. Fulton County District Attorney Fani T. Willis (D) is expected to begin presenting her case to the grand jury today and two witnesses — former Georgia lieutenant governor Geoff Duncan (R) and Atlanta-area journalist George Chidi — are scheduled to testify on Tuesday.

If Trump is charged in Georgia, it would be his fourth indictment this year. Our colleagues Amy Gardner, Kati Perry and Adriana Usero have an in-depth look at how Trump and his allies tried to overturn Georgia’s election results: 

“Two days after Election Day in 2020, President Donald Trump’s eldest son traveled to the Georgia Republican Party headquarters in Atlanta to deliver a message,” our colleagues write. 

“The presidential race was still too close to call in the state and in the country. Georgia Republicans were scrambling to prepare for two runoff elections that would determine control of the U.S. Senate. But Donald Trump Jr. urged them to focus on another task: helping his father win the state by proving that widespread fraud had tainted the results.”

• “If you do not support my dad 100 percent, we have a problem, Donald Trump Jr. told the group, a Trump campaign staffer familiar with the meeting testified to the House committee that investigated the violent attack on the U.S. Capitol on Jan. 6, 2021.”
• “The message was received. That evening, Republican leaders in Georgia held a rally-style news conference in support of Trump.”
• “The same week, the president’s allies circulated a video falsely accusing a Georgia election worker of throwing away ballots, making her the immediate target of harassment and threats. And White House Chief of Staff Mark Meadows and others began evaluating a plan for how legislatures in states like Georgia could overturn the will of voters.”

“The rapid series of events kicked off an aggressive pressure campaign that only intensified as weeks passed and the results more and more firmly showed that Trump had lost,” our colleagues write. 

• “Nowhere was the effort more acute than in Georgia, where all of their strategies came together in a complex and multilayered effort that unfolded against the hyperpartisan backdrop of two ongoing U.S. Senate races.”
• “Their efforts involved scores of people — lawyers, political operatives, local GOP officials, senior White House advisers and even the Department of Justice.”

The Media

Must reads

From The Post:

• What the 2024 candidate appearances looked like at the Iowa State Fair. By Marianne LeVine, Dylan Wells and Hannah Knowles.
• Revealing the Smithsonian’s ‘racial brain collection.’ By Nicole Dungca and Claire Healy.
• Biden wants rich companies to pay higher taxes. Some are fighting back. By Tony Romm.
• DeSantis campaign struggles unsurprising, say some Florida insiders. By Josh Dawsey.
• After a police raid on a Kansas newspaper, questions mount. By Sofia Andrade and Paul Farhi.

From across the web: 

• Victim vignettes: Hawaii wildfires lead to indescribable grief as families learn fate of loved ones. By the Associated Press’s Pat Eaton-Robb and Beatrice Dupuy.
• RFK Jr. backs 15-week federal ban on abortion, then reverses himself. By Politico’s David Cohen.

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