Democrats Mourn the Loss of the Filibuster As Trump Begins to Re-Shape the Ninth Circuit

Earlier today the Senate Judiciary Committee approved and sent to the floor of the Senate the nomination of Ryan Bounds to serve on the Ninth Circuit. What makes Bounds’s nomination so unusual is that it is the first time since 1917 that a circuit court nominee has been approved over the opposition of both home state senators. The seat he is filling has, by tradition, been filled by an Oregonian. Both of Oregon’s senators are Democrats and they found Mr. Bounds to be wanting in wokeness:

In Bounds’s case, Democrats point to his track record of legal advocacy for conservative causes and clients and several opinions he published in college that disparaged minorities and sexual assault victims — articles Bounds has since tried to disavow.

Right now the Ninth Circuit has seven of its 29 seats vacant and another vacancy is due to open this summer.

How did this all come to pass?

Senate Democrats took the dramatic step Thursday of eliminating filibusters for most nominations by presidents, a power play they said was necessary to fix a broken system but one that Republicans said will only rupture it further.

Democrats used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades.

Then in September 2017, McConnell announced he was not opposed to getting rid of the “blue slip” system in which home state senators got to veto nominees. Judiciary Chairman Chuck Grassley has transformed the former veto into a “head’s up, here is how I’m going to vote on this guy” notification. In some cases where Democrats have tried to scuttle a nominee by refusing to return a blue slip, Grassley has ignored it.

Now Democrats are singing the blues.

“If we do away with blue slips, and that appears to be where we’re going, then what will stop the administration from appointing a resident of New York to Iowa’s 8th Circuit seat?” Sen. Dianne Feinstein (D-Calif.), the panel’s ranking minority-party member, asked before Thursday’s 11-to-10 vote — addressing the comment to Republican Chairman Charles E. Grassley, who is from Iowa.

“When you disable the only mechanism that assigns the circuit court seats to a state and provides some means of enforcement, it’s just incredibly easy for this president or another president to say … let’s just put my college roommate from wherever into whatever seat,” said panel member Sen. Sheldon Whitehouse (D-R.I.). “There’s no principled way to defend against that if you have thrown the blue slip under the bus.”

This is such nonsense. The power to nominate judges lies with the president. Period. Full stop. The Senate can confirm them. There is no Constitutional requirement that they agree to wash the car of a home state senator. In fact, there is no Constitutional requirement that these circuit court seats need to be parceled out to states, much less that the natives of certain states have the rights to certain judicial seats. All of this is courtesy based. But when courtesy ends, like it did under Harry Reid, it cuts both ways.

But there is a bigger reason for the belly-aching than adherence to tradition (if they’d done that, there would still be a filibuster). It is because the federal bench is being transformed.

Thus far, Trump has had 21 judges confirmed to Circuit Court positions. They are nearly all in their 40s or 50s. They are all vetted by the Federalist Society. This is a reshaping of the judiciary underway and one that will last well over a generation.

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