Senator Al Franken had a problem. He believed Judge David R. Stras, who clerked for Clarence Thomas and served on the Minnesota State Supreme Court, was qualified. But he was concerned that Stras was too conservative for a lifetime appointment. Franken decided to try to stop the nomination from going forward.
Franken did not return his blue slip — a literal blue piece of paper with a senator’s opinion of a judicial nominee on it. At least under the prior Chairman, Democrat Senator Patrick Leahy, if a judicial nominee’s home state senator did not return a blue slip, there would not be a hearing, there would be no vote, and the nominee would not be appointed.
But then the vote came anyway.
Franken’s counterpart in the Senate, Amy Klobuchar, said she was “deeply concerned” about the end of the blue slip process. But she said she personally believed Stras deserved a hearing. “I by no means agree with every case that he has decided,” Klobuchar said during Stras’ hearing, “But I believe we have a shared respect for the rule of law and our judicial system.” Klobuchar returned her blue slip.
When Stras’ nomination came up for a Senate Judiciary Committee vote, the result was 13-8. Only two Democrats voted with Republicans to advance the nomination. One of them was Klobuchar.
By the time Stras’ confirmation made it to the Senate floor for a vote, Franken had resigned. But his replacement, Senator Tina Smith, voted no. Stras was confirmed to the Eighth Circuit Court on a 56-42 vote, with seven Democrats voting in favor of Stras. Klobuchar was one of them.
Now running for president, on the campaign trail Klobuchar often frames herself in two ways: as the bipartisan senator who can get things done and as a “proven progressive.” But Klobuchar’s votes alongside Republicans are not an aberration — they’re representative of her record as a whole on judicial appointments. Other than from Sen. Michael Bennet of Colorado, Klobuchar has voted with Republicans to confirm many of President Donald Trump’s judicial appointments — more than any of the other Senate Democrats running for president.
The presidential field
The gap between Klobuchar’s judicial voting record and the other senators running for president is wide. Out of a field that includes Sens. Bernie Sanders, Kirsten Gillibrand, Kamala Harris, Cory Booker, Elizabeth Warren, and Bennet, only Bennet’s record looks similar to Klobuchar’s.
For the 115th Congressional session (2017-18), Klobuchar voted 64 percent of the time for judges nominated by Trump. Booker, Warren, Gillibrand, Harris, and Sanders all voted for the nominees 46 to 51 percent of the time.
Klobuchar is the only Senate Democrat running for president that voted to confirm Stras. She was also the only Senate Democrat running to vote with Republicans to confirm Charles Barnes Goodwin, who was rated as not qualified by the American Bar Association. (Five of her Democratic colleagues also voted yes.)
Bennet and Klobuchar were also the only Democrats running for President to vote to confirm Kurt D. Engelhardt to the 11th Circuit, where he is set to be a pivotal vote in deciding whether or not the Affordable Care Act is held up as constitutional. (In total, fifteen Senate Democrats voted to confirm Engelhardt.) In the case of confirming Kevin Christopher Newsom and Elizabeth Branch to the 11th Circuit, Bennet and Klobuchar were the only Democrats running to vote to confirm the two judges, who recently passed on defending sexual orientation as a civil right. (Newsom and Branch received 16 and 24 Democratic votes to confirm, respectively.)
A changing tradition
While Klobuchar’s votes with Republicans on nominees put her at odds with the presidential field and much of the Democratic caucus as a whole, bipartisan voting on judges is not without precedent. For years, appointments by presidents of either party would generally receive hearings and confirmations.
But there are reasons to believe that tradition is over. Under Majority Leader Mitch McConnell’s leadership, Republicans in 2016 refused to grant Merrick Garland, nominated by President Barack Obama to the Supreme Court, even a hearing, let alone confirming him. Under President Trump, Democrats in the minority in the Senate have, largely unsuccessfully, worked to block an increasing number of nominations.
For some liberal judicial advocates, the latter change is welcome. “We’ve seen Democrats continue to take the old school approach to considering nominees, even as Republicans have taken a cutthroat approach to the courts,” said Brian Fallon, executive director of Demand Justice, a left-leaning judicial activist group. “And that asymmetry is going to kill us in the next couple of decades.”
Advocates also point to an ideological shift in nominations under Trump. Elliot Mincberg is the Senior Counsel at People for the American Way, a liberal advocacy group that’s been working to evaluate the impact of Trump’s judicial appointments. “Even though a lot of Trump judges are filling seats that had been occupied by Republican appointed judges, in a number of instances, including Judge Stras, the Trump judges have been to the right of other Republican appointed judges,” he said.
“Historically, judges acted like judges. Most of them most of the time. It mattered a lot less than most people think: Who appointed a judge? Who nominated a judge?,” said Americans United for Separation of Church and State Legal Director Richard B. Katske. “Whether that’s still true today is a serious question.”
Trump has leaned heavily on the Federalist Society, a powerful conservative judicial activist group, to select judicial nominees. Its Executive Vice President, Leonard Leo, worked as an advisor to the president to devise a list of court nominees.
“The groups picking the judges. They know what they’re getting,” Franken said during Stras’ hearing. “But the public doesn’t.”
Since the beginning of 2019, the year she launched her presidential bid, Klobuchar has only voted to confirm one of Trump’s judicial nominees. In a statement to MinnPost explaining the change, Klobuchar’s office cited procedural objections: “This is pretty basic — every single Democratic Senator’s support for judicial nominees dropped significantly when the Republicans forced through a rule change to further limit debate on judicial nominees,” Klobuchar’s campaign told MinnPost in a statement. “As ranking member of the Senate Rules Committee, Senator Klobuchar led the fight against this raw Republican exercise of power and was particularly and fervently opposed.” (Klobuchar is referring to a recent rule change limiting debate on district court nominees, intended to speed up the process.)
Votes have consequences
Judges appointed by Trump have only been on the bench for a short period of time, but they have already decided critical cases. Some of these early rulings lend credence to advocates concerns’ about the rightward tilt of the nominees.
In the case Bostock v. Clayton County Board of Commissioners, the majority of the 11th Circuit declined to rehear a case in which Clayton County’s contention that sexual orientation is not covered by Title VII of the Civil Rights Act of 1964. Both Kevin Newsom and Elizabeth Branch — two Trump-appointed 11th Circuit judges voted for by Klobuchar — sided with several of their colleagues on this case, in which the plaintiff, Gerald Lynn Bostock, said he was fired because he is gay.
Only two judges on the circuit dissented, Judge Robin. S. Rosenbaum, who was appointed by Obama, and William H. Pryor Jr, who was appointed by Bush. The dissent reads: “I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love.” That case is now with the Supreme Court.
Kurt D. Engelhardt, appointed to the Fifth Circuit and voted for by Klobuchar, recently sided in with five other judges in June Medical Services v. Gee to deny a rehearing of a decision that would have stopped a law blocking a majority of women in Lousiana from being able to obtain an abortion. (The Supreme Court reversed that ruling in a 5-4 vote in February, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh saying they would have allowed the law to go into effect. The court may yet consider the case as a whole.)
Engelhardt will likely be the deciding vote on a case that could declare the Affordable Care Act unconstitutional, Texas v. United States. Minnesota lawmakers have been up in arms about the lawsuit in the last two months. Sen. Smith, who voted against Engelhardt’s confirmation, said in a press call last month, “We are on the eve of a lawsuit that, if it is successful, will upend the lives of millions of Americans and hundreds of thousands of Minnesotans.”
In Burka v. Sessions, Stras wrote the majority opinion in the court’s 2-1 decision that they did not have the jurisdiction to send an asylum claim back to be processed. The claim was that Barite Burka, an Ethiopian woman, feared returning to Ethiopia because her husband, a political dissident, had disappeared. The court said that the disappearance of Burka’s husband was not a new circumstance that would qualify Burka for another agency review, but instead a logical continuation of past fears. Therefore, Stras argued, they did not have the authority to make a decision on the case.
In her dissent, Judge Jane L. Kelly, appointed by Obama, said, “I believe the court makes a factual finding that the agency never made.”
“There was very clear evidence that the woman from Ethiopia was clearly subject to an increased risk of persecution if she was returned to Ethiopia,” said Mincberg, who also served as Chief Counsel for Oversight and Investigations on the House Judiciary Committee. “Judge Stras deferred to the agency in some respects and didn’t provide that opportunity.”
Another case that Stras will help decide, Telescope Media Group v. Lindsey, could fundamentally challenge the basis of the Minnesota Human Rights Act. The case involves a Minnesota company that wants to produce wedding videos, and although they have yet to actually produce any wedding videos, they are suing the State of Minnesota to ensure they do not have to create wedding videography for same sex couples. If Stras and the other conservative justices on the panel side in favor of the plaintiff and against the Minnesota Attorney General’s Office, then discrimination against same sex couples may be legalized in a narrow sense.
“The law would be unconstitutional as applied to people with religious objections, at least religious videographers, who object to serving same sex couples, or at least their wedding videos,” said Professor Caroline Mala Corbin, a constitutional law proffesor Miami School of Law. “It depends on how narrowly, or broadly, they rule.”
Overall, Fallon at Demand Justice is concerned that the rulings by Stras, Engelhardt, and others are often divorced from the Senators that appointed them in the first place. And he believes that’s a serious problem, considering judicial nominations are most of what the Senate does these days.
“There’s very little accountability,” he said. “Very infrequently are any individual senators held accountable for the judges that they confirm and the opinions that they produce.”
Correction:An earlier version of this story omitted mention of Sen. Sheldon Whitehouse’s vote by proxy in favor of advancing Stras’ nomination.