Bench Memos

Politics & Policy

By Their Own Standards, Democrats Should Be Pushing, Not Impeding, Confirmations

Job-performance evaluations are routine for many Americans. Well, the American people have, in a sense, hired the president and the Senate, and they need to evaluate their performance when it comes to appointing federal judges.

The tough part is finding the right standard or criteria. It’s easy to find a yardstick that looks objective, but is really just a self-serving partisan benchmark. So to be on the safe side, let’s use standards offered by the Obama administration.

In July 2012, for example, White House Counsel Kathy Ruemmler issued a statement claiming that the “judicial vacancy rate has never been this high for this long.” That claim was not even close to being true when she made it; vacancies had declined steadily for the previous 18 months and, at 76, were the lowest in three years. In any event, there are 133 judicial vacancies today, 25 percent higher than when Trump took office.

In that same statement, Ruemmler claimed that “there are 20 judicial nominees waiting for consideration by the Senate, half of whom would fill vacancies deemed judicial emergencies.” Today, 36 judicial nominees are on the Senate’s executive calendar awaiting confirmation, 64 percent of them to judicial emergency vacancies.

In March 2013, the Obama White House released an infographic about his judicial nominees that included a section on “Delays in the Senate.” It criticized “unprecedented delays in the Senate confirmation process” resulting in 80.5 percent of Obama’s judicial nominees being confirmed. As the Heritage Foundation’s Judicial Appointment Tracker shows, that figure is only 56.5 percent for President Donald Trump’s judicial nominees.

In November 2013, Obama himself complained that judicial nominees who are confirmed with little dissent still have a long wait for a final vote. “So this isn’t obstruction on substance, on qualifications,” he said, it’s “just to gum up the works.” By then, five years into his presidency, the Senate had taken 12 votes to invoke cloture, or end debate, on judicial nominations, and only six of those votes failed. Only six filibusters – even when Senate rules allowed using a cloture vote to block a nomination.

In less than half the time under Trump, Obama’s party has forced the Senate to take 69 cloture votes on judicial nominations. And today, thanks to Democrats changing Senate rules, cloture votes can be used only to delay, but not to defeat, nominations. If 12 meaningful cloture votes served only to “gum up the works,” as Obama put it, what are six times as many meaningless cloture votes?

These are just a few of the criteria that the Obama administration used to evaluate how the Senate was conducting its part of the judicial appointment process. By these measures, the situation is much more serious today. Yet instead of helping to alleviate the problem, Democrats are making it worse.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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