Senate Democrats finally broke the logjam in the Senate Judiciary Committee this past week by advancing seven judicial nominees for confirmation votes.
It was the first time since mid-February that judicial nominees were advanced to the full Senate and only happened with GOP help, giving Democrats some hope the panel can operate effectively in the ongoing absence of Sen. Dianne Feinstein (D-Calif.).
But how long that goodwill lasts remains an open question, as there is no sign that four partisan nominees will be going anywhere without movement on Feinstein’s part in one way or another. Feinstein, 89, has been sidelined since the end of February after being diagnosed with shingles.
“We still have a measure of bipartisanship. There’s a common interest in having judges on the bench in both red and blue states, and I think it bodes somewhat well, but still, we need to do a lot more,” Sen. Richard Blumenthal (D-Conn.) said.
The seven judicial nominees, all for district court vacancies, were reported out of committee with the backing of Sen. Lindsey Graham (R-S.C.), with Sens. Thom Tillis (R-N.C.) and John Kennedy (R-La.) also voting for several of them.
Sen. Peter Welch (D-Vt.) told The Hill that Thursday’s move was a positive sign of how committee members can press forward in the coming weeks and — potentially months — sans the California Democratic stalwart. He also lauded Graham for “doing all he can to maintain a good working relationship” with Democratic members of the panel.
“So I’m hopeful,” Welch added.
Still, Welch acknowledged there is likely a limit to the kumbaya moment. The committee is expected to vote next week on more nominees that were held over on Thursday because it was the first time they came before the panel.
“It’s finite,” Welch said. “How long you can last is finite. … This is not sustainable even with the goodwill Sen. Graham is displaying.”
The lion’s share of attention has been focused on four nominees who remain in limbo until Feinstein returns or makes a decision about her future. Michael Delaney, a nominee to serve on the 1st Circuit Court of Appeals, remains stuck over his handling of a sexual assault case at a boarding school in New Hampshire. Unlike the others, he is also in trouble with some Democrats who have yet to commit to supporting him in committee.
“I still have concerns. I’ve made no decision,” Blumenthal told reporters earlier last week, adding that he’s continuing to consult with his colleagues about the nomination.
The other three all had issues at the confirmation hearings that spooked Republicans. Charnelle Bjelkengren, tapped to be a district court judge in Washington, stumbled during her confirmation hearing when asked what Article 5 of the Constitution is.
Marian Gaston, nominated for the Southern District of California, was grilled during her hearing over her past writings about sex offenders. Finally, Kato Crews, nominated to be a district court judge in Colorado, was unable to define what a Brady motion is.
All four examples were held up by Senate Minority Leader Mitch McConnell (R-Ky.) during floor remarks last week, commenting that the four are “especially extreme” or “especially unqualified.”
Adding to the committee’s troubles, its deadlocked nature dooms any potential plans to subpoena Chief Justice John Roberts for testimony before the panel on Supreme Court ethics rules.
Judiciary Committee Chairman Dick Durbin (D-Ill.) last week called on Roberts or “another Justice whom you designate” to appear before the committee next month, but the request is purely voluntary and any chance of issuing a subpoena to compel testimony is dependent on Feinstein’s presence. Democrats hold an 11-10 advantage if Feinstein is back in Washington for work.
“It takes a majority. I don’t have a majority. There’s been no discussion of subpoenas for anyone at this point,” Durbin told reporters.
The call for testimony came after a report emerged showing that Justice Clarence Thomas had taken a number of luxury trips that were paid for by Harlan Crow, a Republican donor, but were not included on his public financial filings with the Court.
Feinstein announced in February that she is not running for reelection, but her term doesn’t expire until the end of 2024, and some progressives have been calling for her ouster if she is unable to perform her senatorial duties.
Senate Democrats, however, appear prepared to wait things out after Republicans declined to support Feinstein’s push to have Senate Majority Leader Chuck Schumer (D-N.Y.) temporarily replace her on the committee.
Some also blame the fever pitch that has surrounded judicial nominations. They point to the end of former President Obama’s term when Senate Republicans declined to replace the late Justice Antonin Scalia on the bench and confirmed a spate of nominees across the judiciary after former President Trump took office.
That effort has been highlighted in recent weeks by Judge Matthew Kacsmaryk of the Northern District of Texas, who was confirmed under Trump in 2019, limiting access to the abortion pill mifepristone.
“On a scale of 1 to 10, the politicization of the courts is at an 11,” said. Sen. Elizabeth Warren (D-Mass.).