Bench Memos

Law & the Courts

Dems’ Confirmation Strategy Ignores Their Previous Complaints about Republicans

Senator Patrick Leahy (D., Vt.) speaks during a Senate Judiciary Committee oversight hearing on Capitol Hill, in Washington, D.C., August 5, 2020. (Carolyn Kaster/Reuters Pool)

In 2018, with Donald Trump in the White House and Republicans running the Senate, Democrats regularly complained about the judicial confirmation process. In fact, Judiciary Committee Democrats issued a report titled “Republican Efforts to Stack Federal Courts.”

You’d think that since nine of today’s eleven committee Democrats, including Chairman Richard Durbin (D., Ill.), signed that report, they would take the chance to make the process run as they so loudly said it should.

If you’d think that, you’d be wrong.

Democrats, for example, complained that including two appeals court nominees in the same hearing “ma[de] it more difficult to vet and question them.” Democrats have already done this in twice as many hearings as Republicans did at this point in 2017.

Democrats complained that an average of 131 days from nomination to confirmation was “rushing” appeals court nominees through the Senate. This year, the Senate has been confirming Biden’s appeals court nominees in an average of 68 days.

Democrats complained that Republicans “undermined” the American Bar Association’s role in evaluating judicial nominees, but it looks like Democrats don’t actually care much about the ABA’s ratings after all. In Obama’s first year, judicial nominees with a unanimous “well qualified” ABA rating received an average of eight negative votes from Republicans. In Trump’s first year, judicial nominees with the same top rating received an average of 30 opposition votes from Democrats.

Democrats complained that “Trump’s circuit court nominees have been young, with more than half in their 40s.” That seems more like an observation than a genuine complaint, but no matter. The average age of Biden’s circuit court nominees so far this year is exactly the same as the average age of the same number of Trump’s first-year circuit nominees.

Democrats complained that “Senate Republicans have been rushing nominees through the Senate at a breakneck pace.” Even with 40 percent fewer vacancies to fill, compared to the same period in the Trump administration, President Joe Biden has made more nominations, three times as many nominees have had a Judiciary Committee hearing, and the Senate has confirmed twice as many judges.

How’s this for a little confirmation irony: current president pro tempore senator Patrick Leahy (D., Vt.) signed that 2018 report and took to the Senate floor to decry what he claimed was the Republicans’ “disingenuous double standard” in the judicial confirmation process. Yet here he is today, participating in everything that he said should not be done.

In that same speech, Leahy observed that Republicans, “including many serving today, signed a letter” during the Obama administration about maintaining Senate norms. In April 2017, Democrats, including many serving today, signed a letter opposing any change to Senate rules allowing extended debate. Yes, Leahy signed it too.

When it comes to Senate norms, however, actions speak a lot louder than words.

Thomas Jipping is a senior legal fellow in the Edwin Meese Center for Legal & Judicial Studies at the Heritage Foundation.


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