Federal Judge James Robart, the 69-year-old George Bush appointee who halted President Donald Trump’s travel ban and who once, months earlier, declared “black lives matter” from his seat on the bench, is one of three federal judges in Western Washington slated for replacement.
Following the “Rule of 80,” the positions occupied by Judges Robart, Marsha Pechman and Robert Lasnik all became vacant in 2016 when their age combined with their years of service exceeded 80.
The Judges’ likely replacements, nominated by a six-person bipartisan committee unique to Washington, was a roster of King County locals: U.S. Attorney Mike Diaz, King County Superior Court Judge Beth Andrus, and Seattle attorney Kathleen O’Sullivan.
But when Donald Trump became President, those three names expired, gone the way of Merrick Garland, Obama’s pick for the U.S. Supreme Court.
Now the question is whether Trump and his administration will choose to solicit recommendations from the panel, as has been done since 1998, or go around the process and find his own picks. So far, his administration has given no indication as to whether he will use the bipartisan process. Neither Sens. Maria Cantwell or Patty Murray have been contacted, according to their offices, nor have any members of the committee.
However, at least one person familiar with the process says representatives from the Trump administration have been in contact with local Republicans to extract nominees, which this person took to mean the Trump administration intended to go around the bipartisan nominating committee.
Others close to the process, however, expressed more hope that, in the end, the Trump administration would do as the previous three presidents have done and allow Washington state to move forward with its unique nominating process.
Once a judge becomes senior “your position is considered vacant and the president has the ability to replace you,” Judge Lasnik said.” Senior judges still occasionally take cases. “The judge can decide how much or how little the judge wants to work,” Lasnik added.
Until Congress confirms a replacement, Robart, Lasnik and Pechman will continue to carry a full load. “I just hope something happens soon,” Lasnik said.
For all the attention heaped on Trump’s Supreme Court nomination, his influence will be felt throughout the judicial system: He will have the opportunity to appoint more than 100 judgeships throughout the country, nearly double the number President Obama faced when he took office. As Robart’s decision to block Trump’s travel ban showed, it is at these levels of the judicial system that some of the most stunning and wide-ranging decisions are made.
Washington’s process began when the state had one Democratic Senator, Patty Murray, and one Republican Senator, Slade Gorton. And it’s almost universally praised. Lasnik, the first judge to be nominated through the bipartisan panel, complimented its ability to come up with nominees who are well qualified and respected by both Republicans and Democrats. “I hope the bipartisan selection process will stay in place,” he said.
The current committee members are split, 3-3, Democrat and Republican. The Democrats are former U.S. Attorney Jenny Durkan, defense lawyer John Wolfe and Ian Warner, counsel to Seattle Mayor Ed Murray.
The Republicans are U.S. Attorney Mike McKay, former state Attorney General Rob McKenna and former Weyerhaeuser executive Mack Hogans.
For McKenna, the process is valuable for its ability to produce nominees who will likely be confirmed. “This panel process has produced candidates who have been confirmed,” he said. “They’re accepted by the White House. They’ve got support.”
McKenna was disappointed when the three proposed nominees weren’t confirmed. “We ended up with a dozen outstanding finalists,” he said. “They were solid and we believed well qualified to serve. We believed they would be acceptable to the White House…. We thought they’d be confirmed by a Republican senate.”
But they weren’t. McKenna blamed some combination of election-year realities and the death of Supreme Court Justice Antonin Scalia for “diverting whatever attention was available.”
Others, though, blame “obstructionism” — that the tactics used to block Obama’s pick, Merrick Garland were also being used to block any nominee. A spokesperson from Sen. Cantwell’s office forwarded a list of 30 nominees who were nominated and did not receive a hearing, including Diaz, O’Sullivan and Andrus.
Republican control of the White House and Congress means the new nominees from Washington will almost certainly be more conservative than the slate of Andrus, Diaz and O’Sullivan. But because both Washington senators are Democrats, Washington’s panel would also likely not produce candidates as conservative as, say, Supreme Court nominee Neil Gorsuch.
If Trump indeed intends to go around the committee, as has been rumored, that would allow him to choose whomever he liked, which would likely include favorites of conservative groups The Federalist and the Heritage Foundation. But old rules of the Senate afford Cantwell and Murray the power to obstruct any judicial nominees from their home state whom they do not support. That makes Trump's choice one between ideology and practicality.
Despite grumblings of the Trump administration going around the committee, the offices of Murray and Cantwell are still in waiting mode, expecting it will be convened. “Senator Murray is proud of the bipartisan way in which Washington state has filled openings to the federal bench for decades, and she looks forward to continuing this tradition,” a spokesperson from her office said.
McKenna, while also hopeful, was more matter of fact. "I just don't know."