A Strategy of Stupid

Last week, President Donald Trump announced that he was nominating Judge Peter J. Phipps to the Third Circuit Court of Appeal (the appellate court for the federal districts in Pennsylvania, New Jersey, Delaware and the Virgin Islands). The elevation of Phipps – who has served as a district court judge in the Western District of Pennsylvania since October 2018 – was immediately opposed by Pennsylvania Democratic Senator Bob Casey, who announced he would not return a “blue slip” in favor of Phipps’ confirmation. (Without elaborating too much, a Senator’s refusal to return a “blue slip” indicates opposition to a judicial nominee from the Senator’s home state).

Senator Casey’s immediate announcement of opposition/refusal to return a blue slip on an appellate court nominee from Pennsylvania is notable for several reasons. First, Senator Casey returned a blue slip in favor of Phipps’ nomination to the district court seat for which he was confirmed last fall (the current procedures in the Senate require the return of blue slips from both Senators in a state for any district court nominee). Second, Casey is a relatively mainstream Democrat who has a fairly limited incentive to obstruct for the sake of being seen as obstructionist (as may benefit one of the many Democratic Senators running for President).  Third, Phipps’ district court nomination was so non-controversial that he was confirmed by the full Senate via “voice vote,” a procedure where Senate action is not taken by the customary individually-recorded votes that would have allowed Democrats to register their opposition as a matter of record.

In fact, Senator Casey’s quick refusal to return a blue slip for Judge Phipps’ elevation has some judicial pundits wondering whether Democrats will blanketly decline to return blue slips for any future Trump appellate court nominees.  Again, Casey supported Phipps’ appointment to a federal bench last year, Casey is no radical, and the voice vote in favor of Phipps indicates he was not remotely controversial as recently as last year.

Moreover, Senator Casey’s position on this appellate nomination comes on the heels of substantial Democratic opposition to the significant majority of President Trump’s Supreme Court and other federal appellate nominees, with 26 of 39 receiving minimal or no Democratic support (including 6 of 7 appellate nominees in the Congress seated since January 2019).  Bottom line, Democrats are extremely united in their opposition to Trump’s appellate court nominations, opposing them throughout the nomination process and in floor votes.

While Democratic strategy may be explainable from a purely partisan standpoint, it is exceedingly shortsighted and yes … stupid.  Come January 2021, there is a distinct possibility that a Democratic President will be inaugurated, with Republicans remaining in the majority in the Senate (without rehashing one of this author’s articles from a few months back, the 2020 Senate elections are a heavy lift for Democrats in anything but a left-of-center blowout scenario).  At that point, it would be a Democratic President submitting judicial nominations to a Republican Senate.

In such a scenario, Republicans would both control the nominating process and have the majority of votes on the Senate floor.  However, it seems unlikely that Senate Majority Leader Mitch McConnell and a Republican majority would be so obstructionist as to categorically deny a new Democratic President the ability to fill open judicial positions.  What is much more likely is the utilization of targeted efforts to block some Democratic nominees via floor (or committee) votes against the most liberal proposed appointments and procedural obstacles against nominees for benches in states with at least one Republican Senator, with the ultimate hope of leaving some of these seats open for a later Republican President to fill.

For the floor votes, the strategy would be quite simple.  A Republican majority (which could reasonably have as many as 53 seats even in the event of a Trump loss) could simply vote down the more liberal nominees from a new Democratic Administration (or do the same on a Senate Judiciary Committee that would also be controlled by the GOP).  With Democrats providing little support for roughly 2/3s of President Trump’s appellate nominees, mostly for the alleged sin of being “too conservative” to receive a lifetime appointment to powerful benches, a tit for tat by a GOP Senate majority could result in a number of harder left nominees being defeated by narrow majorities on the Senate floor or in the Judiciary Committee.

Moreover, a blue slip rejection strategy would be even more problematic for Dems.  With a Republican majority in play, Democrats cannot force a floor vote on any judicial nominee (this is effectively what doomed President Obama’s Merrick Garland nomination in 2016).  And there is absolutely nothing stopping McConnell and the Republicans from instituting a policy of not bringing Democratic nominations to the floor (or shepherding them through committee) if the nominee’s home state Republican Senator has not returned a blue slip.  Fully 31 states have at least one Republican Senator, meaning such a strategy would give Republicans broad reach to reject Democratic appointments in all but the most liberal states.

With the potential obstacles Democratic nominations could face in a Republican Senate less than two years from now, a wise strategy from the left would be conciliation on President Trump’s present judicial nominations.  As things currently stand, these nominations have passed and will continue to pass with nary a Democratic vote.  In effect, moderate and mainstream Democrats have an incentive to give qualified Trump nominees the “thumbs up” even if they are not fond of the nominee’s ideology (especially since, in the past, Republicans have been the party more willing to abide by the norm of voting in favor of qualified nominees in spite of ideological opposition).*  Likewise, returning blue slips in favor of all but the most ideologically noxious nominees would have a similar impact in encouraging Republicans – who may soon control the fate of Democratic appointments – to keep the blue slip process a less partisan exercise.

Instead of eschewing an ultimately futile partisanship, however, Democrats have gone all in on resistance.  Senator Bob Casey now rejects a nominee he previously signed off on for a lesser bench, with literally no benefit in doing so beyond partisan signaling.  Someday soon, Senator Casey’s and his colleagues’ selection of resistance over a pragmatic position on Republican nominations almost certain to be approved by a Republican Senate will come back to haunt them as a President from their own party faces an opposition majority with the ability to actually resist ideologically objectionable judicial appointments.  And Democrats will almost certainly cry foul about successful GOP “blocking” of Democratic appointments, despite this being the exact tactic Democrats are unsuccessfully trying today.

*For proof of this, of the four Democratic appointments currently on the Supreme Court, all of them received more than 60 Senate votes.  Of the five Republican appointments, exactly one did (Chief Justice Roberts).