President Donald Trump’s choices for three seats on the 9th Circuit Court of Appeals set up a confirmation battle that could become a test of wills between the Senate Judiciary Committee’s leading Democrat, California Sen. Dianne Feinstein, and its new Republican Chairman Lindsey Graham of South Carolina.
The result could shape the San Francisco-based court and the Senate confirmation process for years to come.
Feinstein has been a leading advocate for Senate tradition that gives senators veto power over nominees for judicial posts in their state. Each home state senator has to return what’s known as a “blue slip” before a judicial nominee can receive a vote. Senate Republicans, at the Trump administration’s urging, have brushed aside that tradition in several cases, moving forward with a nominee absent one or both of the home state senators’ blessing.
It would take the partisan feuding over judges to a new level to ignore the ranking Democrat’s decision to oppose the appeals court nominees.
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On Thursday, Feinstein said in a statement that she was “not inclined” to return blue slips for Daniel Collins, Kenneth Lee and Daniel Bress, three conservative attorneys who were nominated to the 9th Circuit Court slots in California “without my approval.”
But Graham, who drew Democratic ire for his defense of Supreme Court Justice Brett Kavanaugh during last year’s confirmation hearings, signaled that wouldn’t stop him from moving forward with all three nominees.
“I have nothing but respect for Sen. Feinstein,” Graham said, “but once (Democrats) changed the rules on circuit courts – they did it, not me – to expect that the blue slip system would survive is pretty naïve.”
Graham was referring to the way Democrats changed filibuster rules when they were in the majority in 2013, allowing federal judicial nominees to be confirmed by a simple majority rather than a 60-vote threshold. Democrats sought to prevent Republicans from blocking President Barack Obama’s nominees once they came to the Senate floor for a vote.
Graham told McClatchy on Thursday he would continue to honor the so-called “blue slip” tradition when it comes to lower, district court judges, but would not apply that rule to circuit court judges.
“I’ll continue to work with them to find compromise and common ground,” Graham said of Democrats, “but not a veto.”
Both Feinstein and fellow California Sen. Kamala Harris said in a statement Wednesday night that they were “deeply disappointed” the White House chose to renominate Lee and Collins, whom the president had tapped to fill 9th Circuit vacancies last year. Their nominations did not get a vote in the Senate before the end of the year, however, causing them to expire.
California’s senators had hoped the need to renominate judges for those vacancies would give them and the White House another chance to negotiate a compromise on the three vacancies and other picks to fill several district court openings in California. “We wanted to work together to come to consensus on a new package of nominees,” they said in Wednesday night’s joint statement.
But after more than a year of back-and-forth, the Trump administration opted to move forward on its own, over the two Democrats’ objections.
That shifts the battle over the nominees to the Senate, where members of both parties will face pressure from partisan activists.
On the right, the conservative Judicial Crisis Network ran ads earlier this month that urge Senate Republicans — including Graham — to stand up to Democrats’ “bullying” Trump judicial nominations. Feinstein and Harris are both featured in the footage.
The 9th Circuit, which has jurisdiction over federal courts in Washington, Oregon, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii, has been a particular target for conservatives, and a frequent foil for the president over his first two years in office. Trump recently complained that “you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace. “
Indeed the court has struck down several of the White House’s most controversial policies, including the president’s travel ban on people from several Muslim-majority countries and the White House’s attempts to withhold federal funds from sanctuary cities.
Most recently, judges on the 9th Circuit Court ruled against the Trump administration in an ongoing legal fight over new Department of Homeland Security rules limiting access to asylum seekers at the U.S.-Mexico border.
On the left, the group Demand Justice warned Feinstein Thursday that it will hold her accountable if the three 9th Circuit judges are confirmed.
“Dianne Feinstein is the senior Democrat on the Senate Judiciary Committee, but her legacy may soon be that Trump flipped the traditionally liberal Ninth Circuit on her watch,” Executive Director Brian Fallon said in a statement.“Perhaps the reason the White House feels confident that it can cross Feinstein and get away with it is because she supports Trump’s judges more than half the time already.”