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Republicans Holding Judicial Hearing With Senate In Recess


President Trump has often said that his most important legacy will be the judges he appoints, not just to the Supreme Court but to the lower courts as well. Lower court nominations don't get a lot of public attention. They usually fly below the radar. But they've long been governed by an elaborate series of Senate rules and traditions that are aimed at ensuring that presidents don't have carte blanche to pick nominees. Now those traditions are being tossed aside at a rapid rate. NPR's legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG, BYLINE: Prior to the Trump administration, there was plenty of tit for tat in the escalating partisan wars over judicial nominations. But the tactics were aimed at blocking nominees. Since President Trump was sworn in, however, the GOP Senate leadership has moved aggressively to speed confirmation of new judges, in the process ignoring or tossing aside rules that have long existed to ensure that there is some consensus in picking judges. Gone for all practical purposes is the rule that prevented action on a judicial nominee who was not approved by his or her home state senator. Gone is the practice of not holding a confirmation hearing until the American Bar Association has completed its professional evaluation of the nominee. Gone is the general practice of not piling up nominees in one hearing. And now, for the first time, the Judiciary Committee is holding confirmation hearings during a Senate recess over the objections of the minority party.

No other Senate committee has been holding hearings during the recess. But for judicial nominees, the Senate confirmation train keeps on running even though - and likely because - Senate Democrats are defending a near record number of seats in the election and have to be out on the hustings. Indeed, just two Republican senators - Orrin Hatch of Utah, who is retiring, and Mike Crapo of Idaho - showed up at yesterday's hearing for two appeals court nominees, a hearing that lasted just 19 minutes and featured one controversial nominee talking for several minutes about his wife, parents, children, even his cat.

I asked Senator Hatch, who never agreed to such a recess hearing when he chaired the judiciary committee, why Republicans went ahead this time.

ORRIN HATCH: Well, I don't know why. All I can say is that, you know, we have to move ahead. And if they're not cooperating, you just go ahead and move ahead. And so far, we haven't had a lot of cooperation.

TOTENBERG: Going ahead has yielded important results for Republicans over the last year and a half. The GOP-controlled Senate has confirmed 29 Trump nominees to federal appeals courts compared to confirmation of just two nominees in the last two years of the Obama presidency. In all, Trump has managed to win confirmation for an astonishing one-sixth of the sitting active federal appeals court judges in the country. These courts decide cases involving a broad range of issues from Social Security or veterans benefit claims to more high-profile cases. And they are, for most people, the court of last resort, deciding some 27,000 cases each year compared to fewer than a hundred decided by the Supreme Court.

Vermont Democrat Patrick Leahy, who chaired the committee for 10 years when the Democrats were in power, is disgusted.

PATRICK LEAHY: What it's going to do is eventually just going to make the federal courts look not independent but political. And that's going to hurt everybody, I don't care if you're a Republican or Democrat.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF JOSH VIETTI'S "STREET VIOLIN") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.