Bench Memos

Law & the Courts

On Lame-Duck Judicial Confirmations

Senate Majority Leader Mitch McConnell (R, Ky.) (Mike Theiler/Reuters)

Rumors swirl that the Senate, originally set to adjourn on December 14, may pack it up a week earlier. Since Majority Leader Mitch McConnell (R., Ky.) said after the election that confirming judges would be his “top priority” for the rest of the 115th Congress, let’s take stock.

We are in the longest period of triple-digit judicial vacancies since the early 1990s, when Congress created 85 new judicial positions. More than half of the current vacancies are designated “judicial emergencies” because the positions have been open so long that they’re worsening judicial caseloads.

Vacancies today are 13 percent higher than when President Trump took office; four of the last five presidents had reduced vacancies by an average of 19 percent at this point.

The Senate has so far confirmed 84 judges in the 115th Congress; the average for presidents Ronald Reagan through Barack Obama at this point was 81. As a percentage of the president’s nominees, however, the current confirmation rate of 55 percent lags behind the past average of 74 percent.

Since Congress expands the judiciary now and then, it’s useful to consider confirmation totals as a percentage of judicial positions. By this measure, the 115th Congress ranks 46th among the 58 congresses since the turn of the 20th century.

That helps put in perspective where we are today, so let’s turn to the opportunity that still remains in the 115th Congress. Trump has been making nominations, and the Judiciary Committee has been holding confirmation hearings, at a much faster clip than in the past.

As a result, 32 judicial nominees, some of whom were first nominated more than a year ago, are ready today for a final Senate vote. That’s only a few more than the 27 Obama nominees confirmed by the Democrat-led Senate after the 2014 midterm election.

A total of 116 judges for the 115th Congress sounds solid but, at 75 percent of Trump’s nominees, would still be less than under three of the last five presidents. And it would raise the 115th Congress’ rank from 46 to 31, still in the bottom half of Congresses since 1900.

In 2013, Democrats gave away the filibuster, the only sure-fire weapon for preventing confirmation of Trump judicial nominees. While they have been employing other tactics to make the confirmation process less efficient, a determined Senate majority can still make the 115th Congress a victory for an independent, impartial judiciary.

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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