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

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


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), Oklahoma: 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, Former Senior Judiciary Committee
Aide: 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, Heritage Foundation: 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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