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How a rule change for Senate confirmation process could affect federal courts

The Senate is considering changing the confirmation process for some nominees to federal courts and administration roles. Republicans want to limit debate time to speed up approvals, while Democrats argue that would compromise senators’ ability to vet nominees. Judy Woodruff talks to Kristine Lucius of the Leadership Conference on Civil and Human Rights and the Heritage Foundation's Tom Jipping.

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  • Judy Woodruff:

    The U.S. Senate could soon be changing, once again, the way it approves nominees for critical jobs in the administration and in the federal judiciary.

    Senate Republicans are aiming to reduce the time for senators to consider these nominees and to speed up the nomination process. They set the stage today for its potential to push the federal courts in an even more illogically conservative direction, while Republicans argue it is simply about denying President Trump the people he wants.

  • Sen. Mazie Hirono, D-Hawaii:

    This significant rule change will help Donald Trump and his Republican enablers in the Senate to more swiftly pack our district courts with ideologically-driven judges, judges who will make biased rulings in line with their personal ideological beliefs, and not based on the law or the Constitution.

  • Rep. James Lankford, R-Okla.:

    You see, this is not about actually debating people, whether they're qualified or not qualified. This is about preventing President Trump from getting nominees by locking up the floor, and making sure that he can't actually hire staff or can't actually put people on the courts.

  • Judy Woodruff:

    Here with me to discuss not just this Senate rule change, but the federal judiciary more generally, are two former longtime Senate Judiciary Committee staffers with firsthand experience with nomination battles.

    Kristine Lucius was a senior aide Democratic Senator Patrick Leahy and is now at the Leadership Conference on Civil and Human Rights. And Tom Jipping is now at the Heritage Foundation. He previously served as a senior aide to former Republican Senator Orrin Hatch.

    And we thank both of you for being here with us.

    I want to start with you, Kristine Lucius.

    Explain just in brief what this rule change that the Senate majority wants to push through. How would it work?

  • Kristine Lucius:

    What they want to be able to do, is they want to break the Senate rule to move faster on President Trump's district court nominees and some of his executive political appointments.

    What we're focused on here today is talking about the effect it would have on the courts, so we're focused on that piece of the resolution that would make it faster to get Trump's presidential judicial appointments confirmed.

    The problem, though, that we're very worried about is why they're doing this. What has happened recently with several district court nominees is, they have hidden their records and only at the last minute have things come out to show histories of bias and other controversies.

    And that is the concern, that the reason they're trying to speed this up is to keep those records hidden.

  • Judy Woodruff:

    Thomas Jipping, you agree this is about speeding this up, but what about the concern that Ms. Lucius is already raising?

  • Tom Jipping:

    Well, I don't know if it is about speeding it up.

    We have got to be clear about what portion of the process this in rules change affects. And it's only the very last, very small portion of the process, after the Senate has already voted to end debate on a nomination.

    There are plenty of examples of nominees who no one opposed whose nomination was in the Senate for almost a year, and this last teeny little piece is not going to, I don't think, speed up the process all that much. It is certainly not going to hide anything.

    There will be all of the rest of the process, the hearings, all of the rest of the investigations and scrutiny to uncover the information that Kristine was talking about.

  • Judy Woodruff:

    So, Kristine Lucius, he's saying it's not going to hide anything, that there will have been all this time beforehand.

  • Kristine Lucius:

    Well, I can give you a concrete example where, at that very last moment, in the post-cloture time, which is that time after…

  • Judy Woodruff:

    This is a reference of what happens in the Senate when they take a vote and they need a certain number, without getting into all…

  • Kristine Lucius:

    Exactly. Sorry.

  • Judy Woodruff:

    Yes.

  • Kristine Lucius:

    But in that last moment is when the Senate decided to reject Thomas Farr to the court in North Carolina, because new evidence had come out about his efforts and his involvement in disenfranchising black voters in North Carolina.

  • Tom Jipping:

    I do not think that's an accurate description of the process of evaluating Tom Farr.

    He had been nominated in that same position a dozen years earlier, and the information Kristine's talking about had been in the public record and discussed for a year before the Senate decided not to move forward with his nomination. It wasn't new information that came out at the last minute.

  • Kristine Lucius:

    Actually, there were news reports that came out after his hearing. In fact, Senators Booker and Harris asked for a new hearing based on news reports that came out after his hearing.

    But even more information came out when there was a civil rights attorney who got involved and was willing to come forward, talking about Thomas Farr's involvement. It is exactly this type of thing at the last minute, when we're talking about a lifetime appointment, that we're worried about.

  • Judy Woodruff:

    Well, let's get to the point on, whether we agree what happened to Mr. Farr, Tom Jipping. Why not take the time that's necessary?

    These are lifetime appointments.

  • Tom Jipping:

    Sure. There is plenty of time.

    What we're talking about here is how much time is available to debate a nominee after the Senate has decided to finish debate. It is the last few hours of a very long process. And the effect of these kinds of delays and obstruction is that, today, we have the highest sustained level of district court vacancies in American history.

    We have 140 vacancies across the federal judiciary that have been in the triple digits for more than two years. This is devastating to the judiciary.

  • Judy Woodruff:

    But don't you also have under President Trump in his first two years more judges approved for the district — federal district positions than even under President Obama, his first two years?

  • Tom Jipping:

    No.

    Well, in fact, President Trump made 159 nominations in his first two years. President Obama made barely over 100. So you can expect the number of confirmations to be higher. However, as a percentage of those nominees, the Senate confirmed fewer for President Trump than it did for President Obama.

  • Judy Woodruff:

    I want to come back, come to the point, Kristine Lucius, about whether — the basic question, doesn't every president have the right to nominate whoever he or she wants at some point in the future to sit on these federal benches?

  • Kristine Lucius:

    Presidents absolutely have the right to nominate whomever they want, but the Senate is what we're talking about today.

    And the Senate has an independent role under the Constitution. The Senate must decide and must carefully vet these lifetime appointments before weighing in.

    And so what we're seeing today is an effort to have the Senate go faster, but we're also seeing a president who is nominating people with records of bias, and that is giving civil rights advocates like myself real concern about speeding up the process.

  • Judy Woodruff:

    What do you mean records of bias?

  • Kristine Lucius:

    Records of bias like Thomas Farr had, like Matthew Kaczmarek has. This is one of the pending district court nominees who could be up in very short order who has called who are transgender people delusional, as an example.

    How would that person, as a judge, be fair to people from the LGBT community?

  • Judy Woodruff:

    Tom Jipping?

  • Tom Jipping:

    But, honestly, also Democrats in the Senate vote in record numbers against nominees who — about whom there is no controversy at all.

    I looked at the appeals court nominees, for example, from President Trump who were unanimously rated well-qualified by the American Bar Association. They received an average of 35 votes against them for confirmation.

    That is unheard of in the history of this process. So it's not just one or two district court nominees who have a little bit of controversy. This kind of rule change needs to be put in place, so that the normal part of the process works efficiently.

  • Judy Woodruff:

    It's a much bigger subject.

    And only about a half-minute left, can each of you explain why this matters so much, what is at stake here, in just a few sentences?

  • Kristine Lucius:

    So what is at stake here is whether our civil rights laws or any law that you care about will be upheld.

    At the end of the day, courts are the place of last resorts. Whether you care about access to health care. You spoke earlier in your news summary about the pending case in district — in Texas. That was a district court judge who ruled that preexisting conditions should no longer be protected.

    So whether it's access to health care or voting rights, the courts are the place where all of us get our rights upheld.

  • Judy Woodruff:

    In just a sentence, what's at stake?

  • Tom Jipping:

    There are conflicts over individual nominees in a few cases, but we need a process that works, so that the Senate, as an institution, does its job.

    We have record vacancies today. We have twice as many vacancies as Kristine's organization once said was a vacancy crisis. So we need a process that works so that the judiciary can do its work.

  • Judy Woodruff:

    Thomas Jipping, Kristine Lucius, thank you both very much.

  • Kristine Lucius:

    Thank you.

  • Tom Jipping:

    Thank you.

  • Judy Woodruff:

    Appreciate it.

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