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Two of President Donald Trump’s appeals court nominees were closely questioned Nov. 29 by Senate Democrats about their ties to conservative organizations, although the scrutiny was not expected to impact their likely confirmations.
The Judiciary Committee confirmation hearing also highlighted a dispute over a century-old Senate tradition around judicial selections, and came a day after the Senate confirmed Greg Katsas to the U.S. Court of Appeals for the District of Columbia Circuit.
Katsas became the ninth appeals court nominee confirmed under Trump, a rare area where the president and fellow Republicans who run the Senate can jointly claim progress in advancing their agenda.
Duncan was asked about his work for the Becket Fund for Religious Liberty, an organization that successfully challenged the Affordable Care Act’s contraceptive mandate based on a company’s religious objection, in the U.S. Supreme Court case, Burwell v. Hobby Lobby Stores, Inc.
“I think his record raises questions about whether he can remain impartial,” said Sen. Dianne Feinstein (D-Calif.), the judiciary panel’s top-ranking Democrat.
In Hobby Lobby, 13,000 employees of a company were denied contraceptive coverage due to their employer’s religious objection, Dick Durbin (D-Ill.), the No. 2 Senate Democrat, said.
Duncan pointed to work opposing litigants asserting religious liberty claims as Louisiana’s solicitor general as evidence of being able to see both sides of such claims.
The right answer in religious liberty cases comes down to the law rather than personal religious beliefs, said Duncan, a partner at Schaerr Duncan LLP, Washington.
Stras was asked whether he conferred with two other conservative groups that placed him on a shortlist of potential Supreme Court nominees provided to Trump.
Sen. Al Franken (D-Minn.) suggested that Stras’s appearance on the list called into question whether he could remain impartial, given Trump’s assertion that candidates on the list would oppose abortion and have a conservative bent.
It concerned Franken that those groups “must have more insight” into his views and philosophy, more “than the American people” have, he said.
Stras said he had no memory of conferring with anyone from the groups—the Federalist Society and Heritage Foundation—about his nomination, though he has a number of friends in the Federalist Society.
He first learned about the shortlist spot on “the day it came out,” from a “press report issued that day,” Stras said.
Other appeals court nominees have been confirmed despite being closely questioned by Democrats, including now-Seventh Circuit Judge Amy Coney Barrett.
A Senate tradition allowing members of a nominee’s home state to effectively delay or halt a judicial appointment by registering their opposition or withholding their endorsement also received attention at the hearing.
Feinstein and other Democrats accused Republicans of not honoring the so-called “blue slip” tradition by scheduling a hearing for Duncan and Stras even though a senator from each of their home states had yet to submit a form, which is blue, to the committee on their nomination.
Republicans didn’t abandon the practice, Judiciary Committee Chairman Chuck Grassley (R-Iowa) said.
Grassley said in both cases that he simply applied the same policy that 16 of 18 previous chairmen followed, which considered objections to nominees but didn’t recognize a “single senator veto,” he said.
Feinstein disagreed that holding the hearing was business as usual.
The blue slip tradition was instituted to ensure nominees to lifetime appointments, like an appeals court seat, would reflect the particular needs of home states and “the legal bar in our communities,” she said.
It encourages “meaningful collaboration and consultation” between the White House and senators from nominees’ home states, she said.
“During the Obama administration, 18 judicial nominees were blocked because they didn’t receive” a blue slip “from both home-state senators,” she tweeted during the hearing.
Sen. Ted Cruz (R-Texas) said that former Vice President Joe Biden, a Democrat and one-time Judiciary Committee chairman once indicated in a letter to then-President George H.W. Bush that failure to return a blue slip wouldn’t preclude consideration of a nominee.
Allowing home state senators to block appeals court judges “would have left us in the following position at the beginning of this Senate: 48 Democratic senators would have been able to blackball 62 percent of the circuit judicial nominees,” Senate Majority Leader Mitch McConnell (R-Ky.) said in October.
“That’s simply not a tenable place to land in a Senate that now deals with judges with a simple majority,” McConnell said.
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