The Senate in recent weeks has witnessed a rare phenomenon: GOP dissent on some of President Donald Trump’s judicial nominees.
While Republican lawmakers are still determined as ever to confirm more judges — a goal they’ve been completing at a record pace — a handful of nominees has now spurred concerns from members of the president’s own party.
This opposition stems from lawmakers on different ends of the Republican ideological spectrum. One of the nominees in question has garnered critiques from social conservatives like Sen. Josh Hawley (R-MO) for not, it appears, being conservative enough, while another is being opposed by the more centrist Sen. Susan Collins (R-ME) for opinions he’s expressed that question marriage equality.
Although Republicans have opposed Trump’s judicial nominees before, notably Thomas Farr and Ryan Bounds for past voter suppression efforts and racist writings, respectively, it’s not a stance that lawmakers take frequently, especially given how central confirming judges is to Senate Majority Leader Mitch McConnell’s agenda.
“The overall picture shows that the GOP has confirmed all but one Trump appellate nominee and virtually all of his district nominees, even though the [American Bar Association] rated six nominees not qualified,” says University of Richmond law school professor Carl Tobias.
As limited as it might be, lawmakers’ recent pushback shows some disparate points of view exist within the party — even when it comes down to a single district or appeals court judge. Additionally, it suggests that there’s little else senators can do if they want to make a point, particularly in a chamber that doesn’t exactly have a robust legislative agenda.
Why Republicans are opposing these specific judges and what it says about the party
The judicial nominees in question have prompted opposition for different reasons.
Michael Bogren, a district court nominee in Michigan, has garnered pushback from social conservatives. Bogren was recently forced to withdraw his nomination due to outcry from lawmakers including Hawley and Sens. Ted Cruz (R-TX) and Thom Tillis (R-NC), who took issue with an argument he made while hired to defend the city of East Lansing, Michigan. In that argument, Bogren approved a brief on behalf of the city, which argued that a Catholic plaintiff that refused to host a same-sex marriage ceremony on their farm should be banned from the city’s farmer’s market.
Conservative lawmakers were displeased with analogies he used in the brief, and suggested that they compared the Catholic couple’s actions to those taken by other groups like the KKK, Politico’s Burgess Everett and Marianne LeVine report.
The ideological purity test used to criticize Bogren concerned members of Hawley, Tillis and Cruz’s own caucus, including Sen. Susan Collins (R-ME), who told Politico that she was “disturbed” by what had taken place. Several Republican lawmakers expressed reservations about efforts to push out Bogren since it would hold him responsible for an argument he made on behalf of a client, a standard that they’ve been loath to use to disqualify a nominee.
A nominee for the Fifth Circuit Court of Appeals, Halil Suleyman Ozerden, has also faced conservative backlash, Politico’s LeVine and Eliana Johnson report. A longtime friend of acting White House Chief of Staff Mick Mulvaney, who was a groomsman in his wedding, Suleyman Ozerden has gotten criticized because some of his decisions as district judge have been overturned by other conservative justices on appeal. Conservative activists have argued that this pattern casts doubt on Suleyman Ozerden’s competence.
“Some of the misgivings about Ozerden are not grounded in ideology or judicial philosophy, but mere judicial competence,” writes Carrie Severino of the Judicial Crisis Network in an op-ed for National Review. Suleyman Ozerden, however, has the staunch backing of his home state Sen. Roger Wicker (R-MS) and has not signaled any plans to withdraw.
The response to Bogren signals, in part, that the more conservative wing of the Senate Republican conference wants to ensure that their presence is known. “One of the things that has been so painful for conservative voters over the years is to see people like former Justice David Souter put on the bench, who wasn’t really vetted,” Hawley told Politico in a recent interview. He previously told the Washington Post he’s interested in shaking up how things are done by the Republican Party, including taking on established ideas about industries like tech and pharma.
“What Sen. Hawley did is very troubling and shows just how much the Senate Republican caucus is moving to the fringes of the party,” Democratic strategist and former Harry Reid staffer Jim Manley told Vox. “The question for me is whether his colleagues are going to let him get away with what he did.”
On a different end of the ideological spectrum, a third district court nominee, Matthew Kacsmaryk, has prompted criticism from Collins, over past statements on LGBTQ rights and abortion rights. Kacsmaryk has previously said the fight for marriage equality has been “typified by lawlessness” and suggested that being transgender is a “delusion.” He is up for a vote in the Senate this week.
“These cracks in the Senate GOP conference are revealing,” says George Washington University political science professor Sarah Binder. “Coupled with some of the earlier withdrawals of judicial nominees, the cleavage tends to be provoked by social issues: How far out of the conservative camp on social issues are senators willing to tolerate in their federal judges?”
The Senate’s agenda is basically judges, judges, and more judges
Republican outcry on these few candidates has stood out because judicial nominees are pretty much the only thing the Senate has been devoted to advancing.
“I think the broader story is generally how unified the party has been in putting very conservative judges onto the bench — both at the trial and appellate levels,” Binder tells Vox. “If anything, these occasional cracks in GOP unity are the exceptions that prove the rule: Only a handful of nominees have been tripped up along their way to the bench.”
As evidence of just how scant the upper chamber’s legislative agenda is, both Democratic congressional leaders and Senate leader McConnell have been keen to describe the Senate as a “legislative graveyard.”
For Democrats, the term is intended as an insult, a jab at how little legislation lawmakers are passing with the upper chamber’s Republican majority. For Republicans, the term is a point of pride, and something McConnell has used to brag about when he puts the kibosh on what he deems “socialist” policies.
Rather than passing legislation, the Senate has been laser-focused on confirming judges — efforts that McConnell sees as having an impact that could last for decades. Thus far in Trump’s presidency, lawmakers have approved circuit court judges at a rate that far surpasses those of recent predecessors. McConnell has said he’s advocated this approach because judges have lifetime appointments, which can’t really be reversed like legislation can.
“The president, I think, has done an excellent job in picking young men and women who believe the job of the judge is to follow the law, and we intend to keep confirming as many as we possibly can as long as we are in a position to do it,” McConnell said during a press conference last year.
With an election year coming up and a number of spending bills that still need to be worked out, the likelihood of more legislation passing the upper chamber is quickly dwindling. Instead, expect a steady stream of judges to keep coming down the pike — and potential opposition from Republican senators if they want to send a message.