The Senate’s Sordid Chicanery Is Putting Our Democracy at Risk

Another Constitution Day is upon us.

But before we break out the balloons and bubbly, I want to talk to you about a provision in the Constitution that is near and dear to my heart but that seems to be less well-loved in some quarters of the U.S. Senate. That provision is called the “Advice and Consent” section of the Appointments Clause. It’s easy to remember because it is in Article II, Section 2, Clause 2. It’s in the Consti2tion.

In a nutshell, it says that the President shall nominate federal judges with the advice and consent of the Senate. I read this to mean, shockingly, that the President shall nominate federal judges with the advice and consent of the Senate.

I’m afraid, however, that due to some sordid chicanery from Senate leadership, there hasn’t been a lot of advice – and there has been way too much consent – given in the last couple of years on judicial nominees who will be on the federal bench for the REST OF THEIR LIVES.

Let’s take a scary peek at the not-so-Pride Parade of shenanigans that has corroded this constitutional mandate designed to ensure that senators have a meaningful role in the nominations process:

• The Blue Slips Float: Picture if you will, Senate Judiciary Republicans gleefully tossing “blue slips” (as they are colloquially called) into the air as they do away with a 100-year-old practice of allowing home state senators to provide advice and consent on circuit court nominees – now allowing the President to override any objections to the nominee.
• The Whack-a-Mole float: Now visualize senators frantically running around the float with hammers trying to understand just who it is they are voting for as new information keeps popping up in different holes that was not originally disclosed, since Senate leadership reduced the traditional debate period for district court nominees from 30 hours to just two. 
• The Recess (not the good kind) Hearings Float: There are just empty chairs on this float except for two judicial nominees and two Senate Republicans asking each other how their day is going. Everyone else is at home because Senate Judiciary leadership has chosen to hold a hearing during recess.  
• The Judicial Nominee Clown Car: Imagine record numbers of judicial nominees packed as tightly as possible into a car and then a timer being set that gives senators five minutes (with a hard stop) to ask all of the nominees difficult and complex legal questions.
• And here comes the American Bar Association Float: Somehow this float is invisible to Republicans if a nominee is rated unqualified.

Salivating to know more about why this constitutional provision is so important and what happens when senators are denied the ability to provide meaningful advice and consent? I’m so glad you asked.

In yet another nutshell, allowing the Senate to actively participate in the nominations process by providing meaningful advice and consent helps to create an independent Senate that necessarily curbs any bad choices that might be made by the President, which helps to ensure that there is a qualified and impartial nominee. In other words, the more say the Senate has in nominating and confirming lifetime appointments, the less say the President has in unilaterally nominating and confirming lifetime appointments. This is literally what “checks and balances” is all about. 

Unfortunately, due to the elimination of so many procedural safeguards (itemized in the afore-described parade), the Senate has not played an active and independent role in the nominations process. As a result, we have witnessed bad choices galore. Unfortunately, a plethora of the bad choices are especially bad choices with regard to LGBTQ issues. I’m afraid we have to witness yet another parade:

• There is Steven Grasz, now confirmed to the Eighth Circuit, who was rated “Not Qualified” by the American Bar Association because his peers did not believe he could set aside his personal bias towards transgender people in order to be a judge. He is now a judge.
• There is Jeff Mateer, a Texas district court nominee, who said on video in front of an audience that he thought transgender children are part of Satan’s plan. He is not a judge (!).
• There is Kyle Duncan, now confirmed to the Fifth Circuit, who questioned the legitimacy of the Supreme Court after the Obergefell decision was issued and said that marriage equality would “imperil civic peace.”
• We can’t forget Gordon Giampietro, a Wisconsin district court nominee, who opined that marriage equality would lead to brother-sister marriage.
• And, of course, there is Matthew Kacsmaryk, confirmed to a Texas district court, who said that gender identity is “problematic” and who referred to LGBTQ people as silly putty, unconstrained by biology, and given in to our erotic desires.

Unfortunately, the receipts have started to roll in on many of these nominees who are now judges and will be judges for a very long time (a lifetime). Earlier this year, Judge James Ho (a Trump-confirmed nominee on the Fifth Circuit) issued a decision denying transition related health care treatment to a transgender woman in a Texas prison. Judge Ho intentionally misgendered her throughout the decision. Just recently, Judge David Stras, another Trump-confirmed judicial nominee for the Eighth Circuit, issued a decision holding that a Minnesota videography company has a First Amendment right to deny services to same-sex couples.

Providing more meaningful advice and (less automatic) consent will help ensure that our federal judiciary is stocked with fair-minded constitutionalists which will, in turn, ensure that every resident of the United States will receive equal justice under the law. Although the term advice and consent is not completely transparent, it must mean more than simply allowing the Senate to act as an unethical enabler of President Trump.

Many eyes are fixated on the 2020 election, but it continues to be in our long-term interest to pay close attention to the nominee process, to demand that our senators provide meaningfully participate in the nominations process, to stop abdicating their duty, and to serve as an active and independent branch of government to ensure the health of our judiciary, our country, and our Constitution.