Two months ago, there was good reason to hope that the Senate would confirm as many as 57 judges this November and December. But so far, there has been only a single confirmation in that period—Jonathan Kobes to the Eighth Circuit.
One big part of the problem has been Senator Flake’s refusal to vote for any nominee in committee or on the floor unless the Senate voted on his proposal to protect special counsel Robert Mueller. Flake’s unsuccessful gambit meant that twenty-five nominees (six appellate and nineteen district) didn’t get reported out of committee, and it, along with Senator Scott’s unjustified reversal, also prevented the confirmation of federal district nominee Thomas Farr.
Another big part of the problem is that some thirty other district-court nominations seem stuck in limbo on the Senate floor. About half of these nominations arrived on the Senate floor between January and July of this year, with the other half all arriving by October 11. Few if any of these nominations present any controversy. Indeed, the seven for New York were part of a package deal with Senator Schumer and include a mix of liberals and conservatives. But the onerous cloture rules (e.g., 30 hours of post-cloture debate) make obstruction easy. So majority leader McConnell’s real leverage comes only at the end of the session, when he can threaten to keep senators in Washington when they would prefer to go home.
If these thirty pending district-court nominations are not confirmed in the coming days, look for Senate Democrats to require the return of the nominations to the president, thus imposing yet further delay as renominations and a second set of committee votes reporting the nominations to the Senate floor would be required in the New Year.