Hawley, Schmitt have opposed most Biden judicial nominees. Can they agree on MO judges?

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It has been 838 days since Judge Rodney W. Sippel announced that he would step down from full-time work in the U.S. District Court for the Eastern District of Missouri and 466 days since he officially took a reduced caseload.

Since then, two more eastern district judges announced they’d step-down – Judge Audrey G. Fleissig and Judge John A. Ross. A fourth vacancy is imminent – Judge Ronnie L. White will step down on July 30.

There are no nominees to replace them.

Amid an increasingly politicized federal judiciary, President Joe Biden and Missouri’s two hard-line Republican senators – Josh Hawley and Eric Schmitt – have repeatedly failed to agree on judicial, U.S. attorney, and U.S. marshal nominees.

The result is a shorthanded federal court in the Eastern District of Missouri, where at least 3,516 cases were filed in 2023, according to the Administrative Office of the U.S. Courts. While the judges have not officially retired from the bench, they have taken “senior status” which involves a reduced caseload.

In the Senate, judicial nominations that were once routinely passed for most of the 20th century have become partisan battlegrounds. The trend is exemplified in Schmitt and Hawley, both of whom have voted against nearly every judicial nominee appointed by Biden.

“Hawley and Schmitt are both pretty far right,” said Russell Wheeler, a senior fellow at the Brookings Institution, who studies the federal judiciary. “I would suspect negotiating with him is a pretty tall order.”

Biden ultimately has the power to nominate judges and the Senate – controlled by Democrats – has the power to either confirm or reject the nomination.

But a century-old Senate tradition effectively gives home state senators the ability to veto any name put forward by the White House. Between 1956 and 2016, only three judicial nominees were approved by the Senate without the approval of their home state senator, according to the Congressional Research Service.

While the tradition has varied over time, Sen. Dick Durbin, the Illinois Democrat in charge of the Judiciary Committee, has generally held that District Court nominees need the approval of home state senators.

“This is ultimately the President’s decision to make and to announce,” Hawley told The Star. “But we’ve had really productive conversations and I think it’s in a good place. I think the trendline is good.”

He may be the only one upbeat about the negotiations. Instead, the White House and senators appear at an impasse, unable to agree on deals that would allow both sides to place “consensus” nominees.

The large ideological gulf between the senators and the White House makes the agreement a challenge. While there has been talk of one-for-one and two-for-one deals, where the White House would put forward some names and the senators would put forward some names, the talks have gone nowhere.

The senators, who both served as Missouri Attorney General before taking office, have suggested some candidates who are leaders in the Federalist Society, a conservative legal society, or have been staffers in Republican attorneys general offices – non-starters for the White House, according to a senior administration official.

Hawley, who sits on the judiciary committee, said he would support “good, rule of law judges.”

But it’s extremely rare for Hawley to approve of Biden’s judicial choices. He has voted against more than 90% of the 150 District Court Judges nominated by Biden and all but one of the 41 Circuit Court Judges.

Of the seven judicial nominees he supported, all of them passed the Senate unanimously. He has been absent during nomination votes for at least four judges.

Schmitt, too, has opposed most of the 13 circuit court judges and the 82 district court judges who have been confirmed since he took office in 2023.

It isn’t just judicial nominations. Biden has yet to nominate a U.S. Attorney and U.S. Marshal for the Western District of Missouri – the federal attorney and a key federal law enforcement officer with jurisdiction in Kansas City.

Rep. Emanuel Cleaver, a Kansas City Democrat, recommended people for the White House to nominate to the roles – particularly a U.S. attorney candidate Cleaver said has been a lifelong prosecutor – but they have yet to get approval from Schmitt or Hawley.

“I’ve never had a conversation with Sen. Schmitt but I have had kind of an ongoing conversation with Hawley,” Cleaver said. “I don’t think based on conversations that he has personal opposition to the individual. I’m making assumptions that he’s just stopping the Democrats.”

Hawley said he believed the White House has been more focused on judicial vacancies than the U.S. Attorney or U.S. Marshal positions.

“Since early 2023, the White House has actively engaged the offices of Senators Hawley and Schmitt in an effort to find a path forward on Missouri’s judicial, U.S. Attorney, and U.S. Marshal vacancies,” said Phil Brest, special assistant to the president and senior counsel in the White House counsel’s office. “...We remain committed to working with the Senators to fill these important vacancies, which are crucial to protecting the safety of Missourians.”

The Senate has confirmed 194 of Biden’s judicial nominees, including Supreme Court Justice Ketanji Brown Jackson, as it tries to catch the 234 judges former President Donald Trump was able to confirm in his first term.

While the vast majority of judicial confirmations have come in states with Democratic senators, the White House has been able to find agreement in states like Texas – where conservative Sen. Ted Cruz has the power to veto nominees – and Louisiana – with conservative Sens. John Kennedy and Bill Cassidy.

Hawley and Schmitt voted against the nominees from both states.

With the presidential election between Biden and Trump neck and neck, Hawley and Schmitt could potentially wait out the Biden administration for a more favorable audience in a Trump administration.

Already, the three judicial vacancies in Missouri have lasted longer than the 538 day median for district court nominations in states where there is at least one Republican representative, according to Wheeler. That’s more than double the 243 days that positions were left vacant in states with two Democratic senators.

“It’s not as if these things affect everybody in Missouri on a daily basis,” Wheeler said. “But for small business owners, for example, who want to get into federal court, they’re likely to see themselves at the end of the longer queue than they might if they were in a state where they’re pretty well judged up.”