People For the American Way

Democrats Are Taking Needed Action to Repair Circuit Courts in Red States

News and Analysis
Democrats Are Taking Needed Action to Repair Circuit Courts in Red States

Kudos to Senate Judiciary Committee Chairman Dick Durbin for planning a hearing for Sixth Circuit nominee Andre Mathis of Tennessee without regard for whether home state senators Marsha Blackburn and Bill Hagerty support him. Chair Durbin recognizes that Democrats can’t hobble themselves with a different set of rules than the ones that Republicans apply when they hold power. After all, having served on the committee for twenty years, Durbin has seen Republican senators regularly advance Republican presidents’ circuit court nominees regardless of whether Democratic home state senators support them.

The Judiciary Committee is tasked with vetting the judges who will determine whether we will remain a nation governed by the rule of law. One indispensable characteristic of the rule of law is that the laws apply to everyone equally. As President Biden said on the anniversary of the January 6 insurrection, “You can’t obey the law only when it’s convenient.” But that’s exactly what Republicans have long been doing with how they treat circuit court nominees.

For many years there had been a Senate tradition calling for the support of both home state senators before a judicial nomination from that state was moved through the Senate Judiciary Committee. In recent decades, as partisan battles over judges increased, Democratic committee chairs adhered to that practice.

But in the past two decades, Senate Republicans have breezily changed the rules when they’ve gotten in the way of their project to pack the federal appeals courts. During the Clinton administration, the Republican chairman (Orrin Hatch) did not allow committee hearings on circuit court nominees without home state senators’ support. But Hatch applied a different rule when Bush was president, allowing the committee to advance four Sixth Circuit nominees from Michigan during Bush’s first term over the objections of Sens. Carl Levin and Debbie Stabenow: David McKeague, Susan Bieke Neilson, Henry Saad, and Richard Griffin.

The next Republican chairman did an identical turnaround. Chuck Grassley refused to process circuit nominees from the Obama White House unless they had the support of both home state senators. But when Trump became president, Grassley’s principles conveniently changed, and he let the committee process eight circuit nominees over two years over the objections of Democratic home state senators: David Stras of Minnesota (Eighth Circuit), Michael Brennan of Wisconsin (Seventh Circuit), Ryan Bounds of Oregon (Ninth Circuit), David Porter of Pennsylvania (Third Circuit), Eric Murphy and Chad Readler of Ohio (Sixth Circuit), Eric Miller of Washington (Ninth Circuit), and Paul Matey of New Jersey (Third Circuit). During the second half of Trump’s term, Grassley’s Republican successor Lindsey Graham similarly never allowed the objection of a home state senator to impede committee consideration of a Trump circuit court nomination, including Michael Park and Joseph Bianco of New York (Second Circuit), Daniel Collins, Patrick Bumatay, Kenneth Lee, and Daniel Bress of California (Ninth Circuit), Lawrence VanDyke of Nevada, Peter Phipps of Pennsylvania (Third Circuit), and Andrew Brasher of Alabama (Eleventh Circuit).

Every Republican on the Judiciary Committee voted to advance these nominees to the floor, where they received overwhelming support from Republican senators – including Tennessee’s Marsha Blackburn once she took office after the 2018 elections. (Tennessee’s other senator, Bill Hagerty, was not elected until 2020.) This repeated repudiation of the former practice is how our nation reached the point where an incredible 30 percent of the nation’s active circuit court judges were put there by Donald Trump.

As the past two decades have shown us, Republicans jettison the rule whenever it’s convenient for them to do so. That means there is no rule, and Democrats are right to recognize that. To pretend otherwise would be to empower Republicans to damage the courts while severely limiting Democrats’ ability to repair the damage.

This month’s anticipated committee hearing for Andre Mathis is the first for a Biden circuit court nominee from a state with Republican senators. It should be the first of many. After all, all people in America deserve the protections of a fair court system.


Andre Mathis, blue slips, judicial nominations, Lower Federal Courts, Sixth Circuit Court of Appeals