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On judicial nominations, Klobuchar’s bipartisan votes put her out of step with the Democratic field

Sen. Amy Klobuchar
Matt McClain/Pool via REUTERS
Sen. Amy Klobuchar watching as Judge Brett Kavanaugh gives comments at a Senate Judiciary Committee hearing on September 27, 2018.

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.

Judge David R. Stras
Judge David R. Stras
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.

Comments (26)

  1. Submitted by Pat Terry on 08/15/2019 - 12:40 pm.

    The president gets to appoint judges. If you don’t like the president, you probably won’t like the judicial appointments. Is that reason alone to vote no? Maybe save the no votes for the really bad ones.

    • Submitted by RB Holbrook on 08/15/2019 - 01:43 pm.

      “Maybe save the no votes for the really bad ones.”

      Why? Vote yes for a judge who is qualified and not objectionable. The burden should be on the proponents of a nominee to show why he/she is qualified. It’s up to those in favor to do the convincing, not the other way around.

      • Submitted by Pat Terry on 08/15/2019 - 02:59 pm.

        Is a judge objectionable because he or she does not share your ideology? Are all Republican judicial picks objectionable?

        I look at it like the boy who cried wolf. If you call every nominee objectionable, no one will care about what you have to say. If you save your no votes for the really bad ones, maybe people will take you seriously.

        • Submitted by RB Holbrook on 08/15/2019 - 04:13 pm.

          “Is a judge objectionable because he or she does not share your ideology?”

          That depends on how deep the difference is. If it’s a matter of saying the Bill of Rights applies to the states via the Privileges and Immunities Clause, rather than via the 14th Amendment, that’s an ideological difference, but it’s no big deal.

          There are also reasons other than ideology to reject a nominee. I’m not sure the mediocre deserve representation on the federal bench.

          “Are all Republican judicial picks objectionable?”

          So far, the record of this administration has been consistent in that regard.

          “If you save your no votes for the really bad ones, maybe people will take you seriously.”

          There are 870 Article III judges whose nominations are voted on by the Senate. A lot of the “not really bad” ones are going to slip through.

      • Submitted by lisa miller on 08/21/2019 - 09:39 pm.

        She is savy. Presidents get to choose who to nominate and given Republicans have had the majority, a no vote in most cases doesn’t go far. She is also aware that she may later need others support for votes, so why waste a no vote on one that is going to go through, unless they are below the bar. Add to it, there have been some that have turned out better than expected–O’Connor and Roberts for starters. You can make lots of statements or you can try to get things done, Klobucher goes for the latter.

    • Submitted by Paul Udstrand on 08/16/2019 - 08:35 am.

      “The president gets to appoint judges. If you don’t like the president, you probably won’t like the judicial appointments. Is that reason alone to vote no? Maybe save the no votes for the really bad ones.”

      This is why bipartisan centrism will be our undoing. Presidents don’t appoint judges, they submit applications- Congress confirms those applications… or not. Decades of ignoring that responsibility have loaded the courts with judges and a SCOTUS that have and will now deliver incalculable damage to our nation and millions of American’s. Only a “centrist” could produce a “rationale” that votes for unqualified and/or ideologically toxic judges in the name of civility.

      The job is to evaluate the candidate and vote for qualified judges who will uphold the law and the Constitution with integrity and fairness. When Klobuchar ignores that responsibility for any reason she’s not doing her job. She’s voted to put hacks on the bench, there’s simply no excuse for that, period.

  2. Submitted by Christopher Williams on 08/15/2019 - 01:14 pm.

    She also sides with Trump and Tina Smith on allowing the mining up by the Boundary Waters. She’s a very middle of the road, lets appeal to everybody, don’t rock the boat type of person.

  3. Submitted by Rod Loper on 08/15/2019 - 01:22 pm.

    Too centrist for me. I miss Franken.

  4. Submitted by David LaPorte on 08/15/2019 - 04:14 pm.

    “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.”

    Voting for Trump judges 64% versus ~50% of the time is a modest difference. The specific votes were cherry picked from the 14% difference.

    While it’s unrelated to Klobuchar’s voting record, I’m deeply disturbed by the lifetime appointments of Federal judges. That made a lot more sense when the Constitution was written, because the life expectancy was 35 years. A Federal judge appointed back then would only serve for a few years. But now that the life expectancy is more than double that, a Federal judge can serve for decades. The only “accountability” is that their decisions might be overturned, but with the politicization of the judiciary, that’s increasingly unlikely for conservative judges.

  5. Submitted by Paul Udstrand on 08/15/2019 - 09:08 pm.

    Thanks for this article Mr. Schneider. Your proving to be a wonderful addition to the Minnpost staff.

  6. Submitted by Lynn Levine on 08/16/2019 - 12:34 am.

    She was also one of nine Democrats to vote along with Republicans to Fast Track the TPP. Another one of the nine was Michael Bennet. Although she points to working well with Republicans as a strength, my progressive friends are quite leery about this. I agree with Chris Williams that her support of dangerous toxic mining in the Boundary Waters (with possible lethal mercury and arsenic contamination to water supply of the native tribe living downstream) is her most horrible recent position.

  7. Submitted by Larry Simmers on 08/16/2019 - 06:01 am.

    Not one mention of Nancy Brasel and Eric Tostrud? You know, the 2 federal judges for Minnesota who Klobuchar helped nominate and confirm in a bipartisan manner.

    Why not mention them?

  8. Submitted by Paul Yochim on 08/16/2019 - 08:14 am.

    Why so critical of Senator Klobuchar? When the late Senator John McCain would go against his party he was praised and given the nickname “Maverick.”

    • Submitted by Paul Udstrand on 08/16/2019 - 09:58 am.

      So your defense of klobuchar is to compare her to a Republican who ushered the Tea Party into national politics by putting Sarah Palin on his ticket? Alrighty then.

      We facing a judiciary stacked with neo-cons who are devastating everything from Obamacare to immigration and environmental protections. We’re facing courts that are on the verge of turning women into second class citizens with no right to privacy, and are upholding blatant efforts to restrict voting, and Klobuchar has voted to put these judges on the bench more often than not. THAT’s why the all the criticism.

    • Submitted by Mike Chrun on 08/16/2019 - 11:46 am.

      Mr. Udstrand beat me to it, but the liberals I know never thought of McCain as a “maverick.” Not only did he unleash the Palin blight on the nation, but his penchant for a military response whenever possible doesn’t endear him. For most of his career, he was one of the faces of bed-rock conservatism: gun rights, vehement anti-union, anti-taxes, anti-regulations, anti-Planned Parenthood, etc. His campaign reform push could be viewed by a cynic as an attempt to get out from under the shadow of the Keating scandal. His vote on Obamacare is much appreciated, but that seemed to be sticking it to so someone whom he very much despised. Personal payback, but, hey, we’ll take it.

      That said, I do admire his bravery and heroism and sense of decency shown when he stopped the pathetic lady from continuing with the Obama is a Muslim line. You always had the feeling he actually cared about the Constitution and what this country represented to the rest of the world, unlike the current sick buffoon. Give us liberals a little credit. Just he cultivated the image of a maverick doesn’t mean he was actually thought of as being one.

      • Submitted by Paul Udstrand on 08/17/2019 - 10:21 am.

        Yeah, Mr. “bomb bomb bomb… bomb bomb Iran”.

        I don’t cut him any slack for his “no maam” moment in defense of Obama. He created that scenario himself and I don’t admire or celebrate people who meet minimum requirements. Just because he compares favorably to the current dolts in office doesn’t earn him a medal in my book. I do give him credit for voting the repeal of Obamacare, but was that about doing the right thing, or sticking his thumb in Trumps eye? Ether way, this no model for Klobuchar or any other Democrat.

  9. Submitted by Paul Udstrand on 08/16/2019 - 08:57 am.

    By the way, Klobuchar’s claim to be a “proven progressive” is blatantly ridiculous. Once again, if “centrism” is so great and electable, why do so many “centrist/moderate” candidates lie about being progressive?

  10. Submitted by Carl Brookins on 08/18/2019 - 03:56 pm.

    I thought this article on judicial nominations was excellent. Historical studies have shown that on the highest level, judges tend to move toward the center. Even Scalia showed his more reasonable side. I thought the piece demonstrated Klobuchar’s thoughtfulness and adherence to the concept that good people, regardless of political ideology ought to be on the benches at any level. Unfortunately there is a current effort, it would appear, to use the judiciary to advance radical political agendas. If allowed to continue there will be serious trouble ahead, but we who are of more centrist view must resist falling into the opposite reactionary cesspool.

    • Submitted by Paul Udstrand on 08/19/2019 - 09:08 am.

      “Historical studies have shown that on the highest level, judges tend to move toward the center. ”

      No, historical studies do NOT show this, this is a typical centrist delusion.

      No, Scalia did NOT drift to the center, on the contrary he turned out NOT to be the centrist that Biden and Democrats assumed he would be. Scalia turned the court rightward in a dramatic fashion. This is the Scalia that nullified an election and appointed Bush. This is the Scalia that wrote majority opinions for right wing rulings on everything from the Second Amendment to campaign financing and voting rights.

      We do NOT have a “centrist” judicial regime, we have a conservative judicial regime, and THAT doesn’t happen if judges move to the “center” when they get on the bench.

      You can go all the way back to Dred Scott and the ruling that three generations of imbeciles are enough and you see that the courts don’t “drift” towards the middle, they change character depending on appointments.

      The idea that you appoint conservative judges and end up with moderate or “centrist” judges is “centrist” delusion and complacency pretending to be historical wisdom. You get the judges you appoint.

      • Submitted by Dave Paulson on 08/21/2019 - 09:58 am.

        Thanx for calling out the false Scalia meme.

        I would add that his much-vaunted deep intellectual wisdom was rarely apparent – he was mid-level smart and insightful, and a lot of his so-called wise decisions were easily critiqued and did not need to hit wise-philosopher level to do that.

  11. Submitted by Paul Udstrand on 08/19/2019 - 09:10 am.

    I hate to say it but the more I see Klobuchar’s campaign for president, the less enthusiastic I am about her being Senator.

  12. Submitted by Jim Marshal on 08/19/2019 - 08:28 pm.

    Amy’s career both here and in Washington shows someone who is on the right wing of her party. She is a former corporate lawyer who made a career as a ‘get tough on crime’, drug warrior, county attorney. As a senator, she has been a huge disappointment for progressives. She poses no threat to the status quo.

    • Submitted by Dave Paulson on 08/21/2019 - 10:01 am.

      That is a cogent statement.
      She is centrist and in today’s Baby-Man as President and 90% GOP sycophants climate – we need that.

      But she has made some, maybe many nakedly political moves, and as an example of Senatorial wisdom I will remind people of her proposed bill to stop airlines from charging routine baggage fees.

      If that was not a political ploy without ideological underpinnings – what is?

      • Submitted by Jim Marshal on 08/28/2019 - 09:33 am.

        I think you misunderstand what constitutes a centrist in the Democratic party. Democrats who consistently vote for and support neoliberal policies are not centrist. They comprise the right wing of the party.

  13. Submitted by Andy Briebart on 08/21/2019 - 08:20 pm.

    All the talk about how we need more bipartisanship during the Obama years and now it’s frowned upon.

    • Submitted by Paul Udstrand on 08/22/2019 - 09:10 am.

      Andy, what to you mean: “We”?

      All the elite and elite media talked about was the need for bipartisanship. Obviously tens of millions of Americans have recognized the failure of bipartisan politics and are looking for effective leadership and a functioning government that actually solves problems and doesn’t leave multiple crises on the table indefinitely.

      Klobuchar has been campaigning on her strong advocacy for a secure election system for instance. But her own campaign crashes upon the rocks of bipartisanship because McConnell won’t even consider a floor debate. She’s the one who gets things done, but her own campaign goes nowhere because she can’t get Republican support. And so it goes. Meanwhile, the Russians are coming.

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