Law & the Courts

This Day in Liberal Judicial Activism—February 16

The Supreme Court in Washington, D.C., June 11, 2018. (Erin Schaff/Reuters)

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.

Law & the Courts

Tenth Circuit Ruling Attacks ‘Stereotype’ That Women’s Breasts Are Erotic

In a ruling today in Free the Nipple-Fort Collins v. City of Fort Collins, a divided panel of the Tenth Circuit has enjoined, on equal-protection grounds, a city ordinance that prohibits women from baring their breasts in public (other than for purposes of breastfeeding) but imposes no restrictions on male toplessness.

In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips cites with approval the district court’s objection that the ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.

In dissent, Judge Harris L. Hartz provides some much-needed sense. Some excerpts:

[The city’s ordinance] is part of a long tradition of laws prohibiting public indecency—the public display of portions of the anatomy that are perceived as particularly erotic or serve an excretory function. These laws may be justified as reducing or preventing antisocial behavior caused by indecent exposure: offensive behavior ranging from assault to corruption of youth to simply distraction from productive activity. The Ordinance does not discriminate against women on the basis of any overbroad generalization about their perceived “talents, capacities, or preferences.” To the extent it distinguishes between the sexes, it is based on inherent biological, morphological differences between them. Those differences are not stereotypes. They are not statistical differences, they are not matters of degree. They are differences in anatomical structure that reflect the unique biological roles played by males and females. (Plaintiffs’ “evidence” that the breasts of men and women are essentially identical cannot be taken seriously.) …

And, to go back to first principles in equal-protection jurisprudence, there is nothing inherently invidious to an adult of either gender in declaring that an inherent biological, morphological feature of his or her body is erotic….

Further, even if notions of the erotic are purely culturally based, it is unclear why that is relevant to the validity of indecency laws. The purpose of those laws is to reduce antisocial behavior. Such laws must deal with the real world. Legislation itself is rational even if the behavior it attempts to control is irrational (such as sexual assault purportedly caused by objectification of the female body). What would be the state of society if legislation could control only rational behavior? A regulation designed to reduce the antisocial effects of irrational thinking does not constitute an endorsement of that irrational thinking. Are laws regulating pornography and obscenity invalid if the societal harms they are intended to prevent are caused by cultural influences rather than purely biological ones?

Phillips acknowledges that his panel’s conclusion “is the minority viewpoint” and that “[m]ost other courts, including a recent (split) Seventh Circuit panel [opinion here], have rejected equal-protection challenges to female-only toplessness bans.” Perhaps it will soon be up to the Supreme Court to address the cleavage between the Tenth Circuit and the Seventh Circuit.

Law & the Courts

This Day in Liberal Judicial Activism—February 15

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

2017—In a majority opinion written by Judge Karen Nelson Moore and joined by Judge Jane Stranch, a divided Sixth Circuit panel rules (in Bormuth v. County of Jackson) that a county board of commissioners’ practice of beginning its monthly meetings with a prayer violates the Establishment Clause. In dissent, Judge Richard Griffin objects that the practice of legislative prayer dates back to the founding of the Republic and that the Supreme Court has twice held that it does not violate the Establishment Clause.

Five months later, the en banc Sixth Circuit will reject the panel ruling by a vote of 9 to 6.

Law & the Courts

Seventh Circuit Properly Applies Discredited Supreme Court Precedent

In a unanimous ruling yesterday (in Price v. City of Chicago), a Seventh Circuit panel ruled that Chicago’s “bubble zone” ordinance, which (in the panel’s summary) “prohibit[s] any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the type of speech associated with sidewalk counseling,” is permissible under the Supreme Court’s ruling in Hill v. Colorado (2000). As the panel explains, the Chicago ordinance is indistinguishable from the Colorado law that the Court allowed in Hill.

The Court’s ruling in Hill was widely regarded as egregious when it was rendered—Harvard law professor Laurence Tribe called the case “slam-dunk simple and slam-dunk wrong”—and it has fared very poorly over the years. As the panel explains, recent Supreme Court rulings “have deeply shaken Hill’s foundation,” and Hill “is incompatible with current First Amendment doctrine.” Nonetheless, Hill “remains on the books and directly controls here.” More broadly:

The [Supreme] Court’s instructions in this situation are clear: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (quotation marks omitted).

(If these “instructions” seem at all surprising, that is probably only because so many lower courts that ruled against state marriage laws in the years before Obergefell v. Hodges made up all sorts of weak excuses why intervening Court rulings meant that the Court’s directly applicable precedent in Baker v. Nelson (1972) somehow no longer governed.)

Much as I dislike the result in the case, I think that the esteemed panel—opinion by Diane Sykes, joined by Amy Coney Barrett and district judge William Griesbach—faithfully applied the Court’s instructions.* The Court should grant review in this case to correct its grievous error in Hill.

Both Sykes and Barrett, I’ll note, are on President Trump’s list of Supreme Court candidates, and Barrett was maligned during her 2017 confirmation process by those, like Senator Dianne (“The dogma lives loudly within you”) Feinstein, who baselessly claimed that she would indulge her Catholic faith and her putative pro-life convictions in deciding cases.

* Per this post by Michael Paulsen, I will allow for the possibility of exceptional circumstances in which a lower court may defy governing Supreme Court precedent. (That is not what the courts that declined to apply Baker v. Nelson purported to do.)

Law & the Courts

Judicial Nominations Update

The White House is continuing the process of re-nominating judicial nominees whose nominations had expired at the end of the 115th Congress.  Currently there are 63 nominees pending in the Senate—12 circuit court nominees and 51 district and specialty court nominees.

Last Thursday, the Senate Judiciary Committee advanced 44 judicial nominees (including six circuit court nominees) to the Senate floor where they are currently awaiting confirmation votes.

Yesterday the Senate Judiciary Committee held a hearing on the nominations of Joseph Bianco and Michael Park, President Trump’s nominees to the Second Circuit.

Here is a full update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies:  170

Courts of Appeals:  16

District/Specialty Courts*: 154

Pending nominees for current and known future vacancies:  63

Courts of Appeals: 12

District/Specialty Courts*:  51

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination


Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Joseph Bianco (2nd) 1/23/2019 22 No 2/14/2019
Michael Park (2nd) 1/23/2019 22 No 2/14/2019
Dan Bress (9th) 2/6/2019 8 No Not yet scheduled
Dan Collins (9th) 2/6/2019 8 No Not yet scheduled
Ken Lee (9th) 2/6/2019 8 No Not yet scheduled


Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Neomi Rao (DC) 1/23/2019 22 2/6/2019


Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Allison Jones Rushing (4th) 1/23/2019 22 2/7/2019
Eric Murphy (6th) 1/23/2019 22 2/7/2019
Chad Readler (6th) 1/23/2019 22 2/7/2019
Eric Miller (9th) 1/23/2019 22 2/7/2019
Bridget Shelton Bade (9th) 1/23/2019 22 2/7/2019
Paul Matey (3rd) 1/23/2019 22 2/7/2019

Nominees Awaiting Floor Votes:44

Courts of Appeals: 6

District/Specialty Courts: 38

Nominees Confirmed by the Senate since Inauguration Day: 85

Supreme Court: 2

Courts of Appeals: 30

District/Specialty Courts: 53

Law & the Courts

This Day in Liberal Judicial Activism—February 14

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” only in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Law & the Courts

On Supreme Court Order Allowing Execution in Alabama

Some observations on last Thursday’s Supreme Court order, by a 5-4 vote, allowing the state of Alabama to proceed with the execution of Domineque Ray in the face of his Establishment Clause challenge to the prison policy that prevented him from having a Muslim imam present in the execution chamber:

1. Although you might not know it from the media coverage, the divide between the majority and the dissent appears to turn entirely on whether Ray unduly delayed making his Establishment Clause claim, not on any disagreement over Establishment Clause principles. Here’s the majority’s single-paragraph opinion accompanying its order:

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

The divide between the majority and the dissent on this procedural question mirrored the divide between the district court (which ruled that Ray had unduly delayed bringing his claim) and the Eleventh Circuit (which disagreed). In her dissent, Justice Kagan explains why she “see[s] no reason to reject” the Eleventh Circuit’s conclusion. But it might well be that the majority believed that the Eleventh Circuit failed to accord proper deference to the district court on this question. Given its brief statement, we can’t know.

2. Under the prison’s policy, the only people allowed in the execution chamber with the inmate are prison employees. One of those employees is the prison chaplain, who is a Christian and who will pray with the inmate upon the inmate’s request.

It is very lamentable that the prison did not alter this policy when Ray objected to its obvious religious favoritism. (The policy disfavors not only Muslims and other non-Christians but also, given the internal conflicts within Christianity, many Christians. I wonder how a Catholic inmate’s request that the chaplain pray a Hail Mary with him would be received.) The simplest way to abolish the favoritism would have been to bar the chaplain from the execution chamber. Had the prison made that policy change, the execution of Ray could have proceeded exactly as it did, but not under an Establishment Clause cloud.

3. According to the state’s brief (page 13, note 30), under the prison’s policy Ray was allowed to “meet with an imam in the holding cell immediately prior to his execution” and to “have a Koran and pray at that time.” Plus, Ray was able to see the imam in the viewing room during the execution.

These facts do not of course eliminate the problem of religious favoritism in the prison’s policy, but they do suggest that the prison’s policy offered far greater accommodation of Ray’s religious beliefs than you’d know from Kagan’s dissent or the media coverage.

4. In a Wall Street Journal op-ed today, Luke Goodrich of the Becket Fund explains that “accusations that the Supreme Court’s decision reflects anti-Muslim bias are also mistaken.” As he points out, beyond the fact that the majority ruled against Ray on grounds of untimeliness, the Court, with strong support from the conservative justices, has recently delivered victories to Muslims making religious-liberty claims.

Law & the Courts

This Day in Liberal Judicial Activism—February 13


2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

Law & the Courts

This Day in Liberal Judicial Activism—February 12

(Kevork Djansezian)

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

Law & the Courts

New Jersey Event on Judicial Nominations

Weather allowing, EVENT CANCELED I will be speaking to the New Jersey lawyers chapter of the Federalist Society tomorrow (Tuesday) evening on the topic “Judicial Nominations and the New Congress.” The event will take place at the Morris Museum in Morristown. More information here.

Law & the Courts

This Day in Liberal Judicial Activism—February 10

(Photo: Lucian Milasan/Dreamstime)

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

Law & the Courts

This Day in Liberal Judicial Activism—February 9

(Stephen Lam/REUTERS)

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

Law & the Courts

Observations on the Supreme Court’s Order Blocking Louisiana’s Abortion Law—Part 2

A few additional observations (numbered serially from my Part 1 post):

4. The Louisiana law that the Supreme Court has temporarily blocked from going into effect would require abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they do abortions. In the grand scheme of things, laws like this ought to be of third-order importance at best. (Indeed, both the Fifth Circuit’s opinion below and Louisiana’s argument in favor of the law being allowed to go into effect turned on how little impact the law was likely to have on the provision of abortion.) Instead, Louisiana ought to be able to enact and enforce a general ban on abortion, subject to the limited exceptions it sees fit to adopt. But, of course, the illegitimate Roe/Casey regime continues to make that impossible.

5. There is no obvious “best path” to overturning Roe and to restoring abortion policy to the democratic processes. Nor, much as he might wish otherwise, does the Chief Justice have much control over which cases will be teed up for the Court’s consideration. In particular, the fact that it takes only four justices to grant certiorari means that the four liberals can force the Court to review opinions they don’t like. And ditto for the Chief’s four conservative colleagues.

6. Pending before the Court for action is the state of Indiana’s certiorari petition (which I discussed in this post) that presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus. I hope very much that the Court grants review on both questions.

Law & the Courts

Observations on the Supreme Court’s Order Blocking Louisiana’s Abortion Law—Part 1

Last night, by a vote of 5 to 4 (in June Medical Services v. Gee), the Supreme Court granted the request of abortion providers to block a Louisiana law from taking effect until the Court acts on their intended petition for certiorari seeking review of the Fifth Circuit decision below. Chief Justice Roberts joined the four liberal justices in granting the stay. Justice Kavanaugh wrote a brief dissent setting forth the very narrow grounds on which he voted to deny the request. Justice Thomas, Justice Alito, and Justice Gorsuch dissented without further explanation (as is common on such requests).

Much as I was hoping that the Supreme Court would deny the abortion providers’ request, I think that those who discern grand significance in yesterday’s order are reading the tea leaves with far too much assurance. In this post, I will offer some observations on the actions of the Chief Justice and Justice Kavanaugh. I will offer some broader observations in a second post.

1. I see several possible (and overlapping) explanations for why the Chief Justice voted as he did.

First, it is eminently plausible that the Chief genuinely concluded that the abortion providers had satisfied the three-part test for granting a stay pending filing of a certiorari petition. The first part of that test is that there must be a reasonable probability that four members of the Court would vote to grant certiorari. It’s safe to assume that his four liberal colleagues made clear that they would vote to grant cert. The second element is that there must be a “significant possibility” that the lower court’s decision would be reversed. Although I’ve explained why I think that this element wasn’t satisfied, the standard is so indeterminate that there’s plenty of room for someone to conclude otherwise. The third element is a likelihood of “irreparable harm” if the decision is not stayed. The parties’ competing claims about the likely effect of the Louisiana law also allow reasonable room for disagreement on whether this element is satisfied. (Given existing precedent, the state did not argue that making abortion more difficult to obtain did not qualify as a cognizable harm.)

Second, knowing that his four liberal colleagues would provide the votes needed to grant certiorari in the case, the Chief might well have figured that preserving the case in the procedural posture of a facial challenge to Louisiana’s law was sensible. Among other things, that posture offers the best opportunity for the Court to establish clearly that in a facial challenge to abortion laws, the plaintiff bears the usual burden of establishing that no set of facts exists under which the challenged law would be valid. That would be an important advance. (I discuss this facial-challenge issue more extensively in this essay.) By contrast, if the Louisiana law were to go into effect, the abortion providers’ challenge to it could easily morph into an as-applied challenge.

Third, the Chief might hope that by accommodating the liberal justices on process, he will build good will that will give him more leeway to set things right. Or, to modify the point somewhat, he might hope that his vote enhances the perceived legitimacy of the Court. For what it’s worth, I think that concerns about perceived legitimacy involve impossible calculations and too readily collapse into trying to satisfy the New York Times editorial board.

2. I don’t think that the Chief’s vote signals anything about how he will rule on the merits of the case. I would be very surprised if he regards the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (from which he dissented) as sound precedent. Nor should he. (Note, as one point of comparison, that the liberal justices haven’t regarded Citizens United v. FEC as binding precedent.)

3. In his three-page dissent, Justice Kavanaugh explains that “the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period” and that he would therefore “deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction” at the end of that transition period. Kavanaugh notes that all parties “agree that Whole Woman’s Health is the governing precedent for purposes of this stay application” and proceeds to apply that precedent.

Amazingly, on the basis of this very narrow opinion, some folks on the Left are making frantic charges that Kavanaugh “has declared war on Roe,” and they are trying to beat up Senator Susan Collins for voting for his confirmation. (To be clear: My own expectations for Kavanaugh are very different from those that Senator Collins has voiced. His dissent yesterday, though, does not speak meaningfully to the question of whose expectations will be vindicated.)

Law & the Courts

The Battle for Judicial Confirmations Commences

The judicial confirmation train has left the station.

The Senate Judiciary Committee today reported 44 judicial nominees to the full Senate, as well Bill Barr’s nomination for attorney general.

It’s the first batch of judicial nominations to advance under the chairmanship of Sen. Lindsey Graham (R., S.C.).

That’s the good news. But it’s not as encouraging as it might sound.

First, all of the judicial nominees are actually re-nominees. During the 115th Congress, President Trump made more nominations than any of his predecessors had. But the Senate confirmed a historically smaller percentage of them. As a result, a record 69 judicial nominations expired without final Senate action and were returned to the president.

With a new Congress in town, Trump renominated 54 nominees who had been left hanging last year. All those approved by the committee today were in that batch. Each had a hearing last year, and 18 had already been approved by the Judiciary Committee.

Now they are before the full Senate, ready to be confirmed. Unfortunately, we can expect the Democrats’ obstruction tactics to continue.

Those tactics have been destructively effective. They have left more than 16 percent of the federal judiciary vacant. Vacancies are now nearly 30 percent higher than when Trump took office. We remain mired in the longest period of triple-digit judicial vacancies in 25 years.

Yet some Democrats seem determined to deploy new obstructionist tactics. Senate rules prohibit committees from meeting longer than two hours after the full Senate comes into session. That rule is routinely waived by unanimous consent, but today Democrats objected to waiving it. That meant that, since the Senate began at noon, the Judiciary Committee’s business meeting would have to stop at 2 p.m.

Democratic senators tried to make the meeting last that long. They indulged in seemingly endless speechifying and forced the committee to take separate roll-call votes on more than three dozen nominations. Thankfully, enough members remained to maintain a quorum, and Chairman Graham kept the votes humming so the committee could report the full roster of nominees.

There was a disturbing pattern to the voting, however. More than a dozen nominees to the U.S. District Court were approved by a party-line vote. Senator Patrick Leahy (D., Vt.), who chaired the committee under Presidents George W. Bush and Barack Obama, once criticized Republicans for this practice.

District-court nominees always have the support of their home-state senators and nearly always have strong bipartisan support. The meeting today signaled that indiscriminate, unprecedented opposition will continue for even the least controversial Trump nominees.

In addition to these re-nominations, Trump started making new nominations on January 17, and the Judiciary Committee’s hearing schedule can’t start soon enough.

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