Bench Memos

Law & the Courts

Democrats Continue to Obstruct Trump’s Judicial Nominations

President Donald Trump clasps his hands in the Oval Office in Washington, D.C., December 25, 2018. (James Lawler Duggan/REUTERS )

Breaking records is not always a good thing. When the 115th Congress adjourns, 69 nominations to the federal district and appeals court will expire and be returned to President Trump. That will break the record of 54 set in 1992, at the end of the 102nd Congress.

These numbers, however, do not tell the whole story. Democrats controlled the Senate in 1992. Putting a Republican president’s nominees on ice required nothing more than Judiciary Committee Chairman Joe Biden, D-Del., refusing to hold hearings. In fact, as the New York Times reported shortly before the 1992 election that Democrats did just that “to preserve the vacancies for Gov. Bill Clinton to fill if he is elected President.”

Although this is not a presidential election year and they are not the majority party, Democrats have still been able to prevent a record number of judicial nominations from being confirmed. This is especially serious since more judicial positions are vacant today than at the end of any previous two-year congress. We are in the longest period of triple-digit vacancies in more than 25 years.

Here’s one of the Democrats’ more subtle tactics. The Senate must end debate, or invoke cloture, on a nomination before it can vote on confirmation. If senators will not cooperate to end debate informally, Senate Rule 22 provides for a time-consuming roll-call vote for cloture, followed by as much as 30 hours of debate.

In the past, very little of that post-cloture debate time was used since the final outcome was obvious. Over the five decades before Trump took office, confirmation followed cloture by only a few hours nearly 50 percent of the time. Even during the Obama administration, when the process was said to be so difficult, cloture and confirmation occurred on the same day about 45 percent of the time.

That outcome has dropped to 27 percent under Trump. And this is just one obstruction tactic Senate Democrats have deployed to make the confirmation process as cumbersome as possible.

Because of these tactics, more than half of the current judicial vacancies have gone unfilled for so long that the Judicial Conference, the policy-making body of the federal judiciary, has designated these open seats as “judicial emergencies.” These positions have been open an average of 894 days, and the judges on those courts have an average caseload of more than 500 cases apiece.

Democrats and their left-wing allies are no doubt proud of this achievement, which is significantly more serious than what Democrats condemned just a few years ago. But obstruction-for-partisan-sport is not a good thing.

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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