An op-ed by law professor Carl Tobias in the Des Moines Register criticizes Senate Judiciary Chairman Chuck Grassley for scheduling today’s hearing on five nominations, two each to fill circuit and district court vacancies and one for Assistant Attorney General of the Justice Department’s Civil Rights Division. Specifically, he charges that including so many nominees in one hearing “violate[s] regular order” and “jeopardize[s] his fair and efficient Judiciary Committee stewardship” and “his cordial relationship with Democrats.”
Tobias is correct only in the limited sense that Grassley has gone out of his way to be fair and cordial toward committee Democrats, but he omits any recognition of the magnitude of unfilled vacancies or the Democrats’ accompanying refusal to reciprocate the Chairman’s goodwill.
President Trump entered office with substantially more total judicial vacancies (105) than four of his five predecessors, including almost twice as many as President Obama (55), and only ten fewer vacancies than President Clinton. Tobias looks no earlier than the Obama years in attempting to identify a committee “tradition” capping the number of circuit court nominees per hearing—not that a cap existed even then, but the analogy is particularly inapt given so many fewer vacancies than courts face today. (Never mind that as Chairman of the Senate Judiciary Committee, Ted Kennedy once scheduled seven circuit court nominees for one hearing.) In fact, since inauguration day, the current administration’s judicial vacancies have skyrocketed to 144, a higher number than all five of his predecessors at this point in their respective presidencies. Throw in the Democrat-induced confirmation lag for executive branch vacancies, and the vacancy rate is so bad that, as Senate Majority Leader Mitch McConnell recently remarked, “If this continues it will take us more than 11 years to confirm the remaining presidential appointment[s].”
Of course, it will remain difficult to staff the federal government as long as Senate Democrats engage in wholesale obstruction. After inventing the routine use of the filibuster as a weapon against appellate court nominees during the second Bush administration, Senate Democrats have compelled a vote for cloture on all five Trump judicial nominees who so far have had a floor vote, in addition to all of the nominees to the top three positions in the Justice Department. U.S. Court of Appeals nominees from states represented by Democratic senators have also been impeded by the refusal of those senators to return blue slips, a courtesy extended to home state senators before the Judiciary Committee holds a hearing for a nominee.
This unprecedentedly toxic combination of federal vacancies and obstruction to the nomination process is in stark contrast to Tobias’ idyllic description of Chairman Grassley’s “cordial relationship with Democrats,” at least in the sense that a relationship is a two-way street. Tobias also has little reason for his concern that scheduling the hearing “just when members and staff are returning to Washington could overwhelm scarce panel resources.” Even putting aside that Seventh Circuit nominee Amy Barrett’s hearing was originally scheduled for August 8 and rescheduled for today, the committee to date has held hearings for only 12 Trump judicial nominees. That number can be substantially increased without the Committee being nearly as taxed as the understaffed judiciary and executive branch already are.