Bench Memos

Law & the Courts

Judging Democrats by Their Own Confirmation Standards

Senate Minority Leader Chuck Schumer (D., N.Y.) and other Democratic leaders stand on the steps of the U.S. Capitol during a news conference after their boycott of the Senate Judiciary Committee hearing on the nomination of Judge Amy Coney Barrett to the Supreme Court in Washington, D.C., October 22, 2020. (Ken Cedeno/Reuters)

Republicans controlled the Senate during President Donald Trump’s four years in office. In May 2018, the ten Democrats then on the Senate Judiciary Committee released a report on what they called “Republican efforts to stack federal courts.” This report was obviously intended to present Democrats’ view about how the judicial-confirmation process should function and, therefore, can be used to evaluate the process now that Democrats themselves control the Senate.

Nine of the eleven Democrats currently serving on the Judiciary Committee signed this report, including Chairman Dick Durbin (D., Ill.). It argues repeatedly that including multiple appeals-court nominees in the same hearing “hampers the ability of senators to adequately vet each nominee.” Chairman Durbin’s first confirmation hearing occurred on April 28, 2021, and the five nominees included . . . wait for it . . . two nominees to the U.S. Court of Appeals.

The report explained that appeals-court nominees often present voluminous records to the Judiciary Committee and “when two circuit court nominees are placed on the same [hearing] panel, they inevitably are less thoroughly vetted.” There is no indication whether Biden’s nominees simply had thinner records or that any Democrats raised any concern that they would be unable to thoroughly vet Biden’s nominees.

The report criticized Republicans for “rushing” the confirmation process. That hearing took place just nine days after Biden sent those five nominees to the Senate. Trump’s first five judicial nominees had their hearings an average of 36 days after nomination, and none sooner than 21 days.

The report also complained that Republicans “ignored” the American Bar Association’s ratings. Yet the Judiciary Committee made appeals-court nominee Candace Jackson-Akiwumi wait just nine days for a hearing, while Trump appeals-court nominee Ralph Erickson, who received the same ABA rating, waited more than five times as long. Biden appeals-court nominee Ketanji Brown Jackson had a hearing in nine days flat; Trump appeals-court nominees Amul Thapar and Joan Larsen, who received the same “well qualified” rating, were put on hold for an average of 78 days.

To be fair, the judicial-appointment process is just getting started. Biden, however, has already made twelve judicial nominations, compared with a total of five at this point by his four predecessors who, like Biden, succeeded a president of the other political party. Democrats have given us a roadmap for how they believe the confirmation process should operate under a Republican president, and they are already deviating from that course.

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


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