Senate Dems raise alarm on 'captured' federal courts as Trump, Republicans keep judicial confirmations coming

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Democrats rail against confirmation hearings amid pandemic

Debate ongoing over Senate considering judicial nominees in election year amid pandemic; reaction from Mike Davis, president of the Article III Project.

Senate Democrats released a 50-plus page report Wednesday sounding alarm bells over the rate at which Senate Republicans and President Trump have confirmed federal judges during the president's first term as Republicans are working on shepherding along even more lifetime-appointed federal judges.

The account calls GOP-appointed judges "politicians in robes," rails against the Chief Justice John Roberts' Supreme Court, slams the conservative and libertarian lawyers' group the Federalist Society and says Senate Majority Leader Mitch McConnell, R-Ky., is "betraying the vision of our founders."

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The report was widely promoted by high-profile Senate Democrats on Wednesday, including Sen. Sheldon Whitehouse, D-R.I., Senate Minority Leader Chuck Schumer, D-N.Y., Sen. Amy Klobuchar, D-Minn., and several others, as Democrats grapple with the breakneck clip of Trump's and McConnell's judicial confirmation efforts.

"Instead of passing legislation to help the American people, Mitch McConnell has chosen to bury those bills in his legislative graveyard," the report's executive summary reads. "This report looks behind the curtain of the GOP’s long campaign of judicial capture, into the fundamental threat it poses to the rule of law and American democracy."

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Beyond Republicans' apparent "judicial capture," the report also foreshadows future Democratic efforts to "shed light on the corruption and conflicts of interest now spreading around the Trump judiciary" and pans what it says was more than $250 million in dark money raised and spent by "a complex network of think tanks, law school centers, policy front groups, political campaign arms, and public relations shops, all focused on shaping the composition of the courts and the rulings they make."

The report was also amplified by Demand Justice, a liberal group tied to former Obama staffers that fights against Trump's judicial nominees and advocates for progressive priorities in federal courts.

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Of course, the dark money accusations cut both ways — Demand Justice is a dark money group just the same as the network of conservative organizations the Democrats' report decries.

"This shows the height of hypocrisy when at this time the largest outside dark money machine is on the left and these senators appear to be turning a blind eye to that," Adam Laxalt, the former Republican Attorney General of Nevada, told Fox News. "And Arabella Advisors, founded by Eric Kessler, is at the center of a dark money organization that funds groups across the entire liberal spectrum. It was reported in Politico that just in 2018 this Arabella Advisors dark money web put $140 million into the 2018 cycle, which included funding of the Demand Justice group that spent money and attacked the nomination of Justice Kavanaugh."

The Politico report Laxalt referenced focuses on donations from the Sixteen Thirty Fund, which the report said is closely tied with Arabella Advisors.

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On the Republican side, Federalist Society co-chairman Leonard Leo has been at the center of efforts to get judges confirmed under Trump. He has the president's ear, helped craft the president's Supreme Court shortlist with former White House Counsel Don McGahn, and according to the Democrats' report, 86 percent of Trump's nominees to federal appeals courts have been Federalist Society members.

The report and publicity effort by Senate Democrats on Wednesday suggests they might be looking to use the federal courts as a political rallying cry for their base the same way Republicans did so effectively in 2016 to unite the party behind President Trump and in 2018 to hold on to the Senate majority as Democrats handily took the House.

But Mike Davis, the former chief nominations counsel for Sen. Charles Grassley, R-Iowa, when he led the Senate Judiciary Committee who now runs the Article III Project, a group aimed at supporting Trump judicial nominees, sees the judiciary as an issue that favors Republicans no matter who is picking the fight.

"In 2016, President @realDonaldTrump won an upset victory over @HillaryClinton, in big part over a judicial fight," Davis tweeted on Wednesday. "In 2018, @SenateDems lost 4 incumbents (even when the Ds won the House), in big part over a judicial fight. Do Democrats really want another judicial fight in 2020?"

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One of the points made in the report about how McConnell is "betraying the vision of our founders" – specifically how "bipartisan cooperation around judicial confirmations was once the prevailing norm" – is how the Senate has recently done away with the practice of "blue slips." Blue slips are the term for the practice of getting approval of a judge's home-state senators regardless of party before moving forward with a nomination.

"For over a century, the Senate 'blue slip' process ensured that senators had a meaningful chance to provide input on nominations to judicial vacancies in their home states," the report reads. "This informal veto power over home-state nominees forced compromise and moderation when the president and home-state senators belonged to opposing political parties."

It added: "Thanks to Mitch McConnell, today all of this bipartisanship and moderation is a thing of the past...  Republicans – from their unprecedented stonewalling of Judge Merrick Garland’s nomination to the U.S. Supreme Court, to their destruction of the Supreme Court filibuster, to their abandonment of the circuit court blue slip – have spent the last four years engaged in a scorched-earth judicial power grab."

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But again, the accusations Democrats make against Republicans go both ways.

Former Senate Majority Leader Harry Reid, D-Nev., did away with the filibuster for lower-court nominees during the Obama administration, against warnings from McConnell at the time. Presumptive Democratic presidential nominee Joe Biden, while a senator, advocated against the confirmation of a Supreme Court nominee in President George H.W. Bush's last year. And Senate Democrats have stalled and voted against what are typically routine judicial confirmations at an unprecedented rate during Trump's time in office.

On the blue slips, Carrie Severino, the president of the conservative Judicial Crisis Network, blamed Democrats for the practice's demise.

"Senators [Charles] Grassley, [R-Iowa], and [Lindsey] Graham [R-S.C.], have been absolutely right to proceed with hearings for highly qualified nominees where the White House attempted to consult with home-state senators who have been nothing but obstructionist," she said.

At this point in his first term, Trump and the Republican Senate have confirmed more than 190 judges to federal Article III courts overall – second only to Jimmy Carter – and 51 judges to the U.S. Courts of Appeals — one more than Carter and 16 more than the next-most successful president, George H.W. Bush.