Bench Memos

Law & the Courts

The Truth about ‘Republican Efforts to Stack Federal Courts’

House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell outside the White House, February 27, 2017. (Jonathan Ernst/Reuters)

On May 10, Democratic members of the Senate Judiciary Committee released a “Review of Republican Efforts to Stack Federal Courts.” The deception starts on page one.

The cover letter signed by all ten Democrats states: “At the committee’s first 2018 markup, 17 judicial nominees were moved forward” and that “Republican senators . . . vot[ed] in lockstep to approve these nominees. The scene was emblematic of Republicans’ rush to fill vacancies under President Trump as quickly as possible.”

Approving 17 nominations in a single meeting — sounds like a “rush,” doesn’t it? Well, here’s rest of the story. Each of those 17 judicial nominees had been nominated months beforehand; some had been pending in the Senate for six months or more. The “rush” is already subsiding, isn’t it?

The Judiciary Committee held hearings on all of them last year and had already approved and sent most of them to the full Senate. The Democrats didn’t tell you that, did they?

Also missing from their account is the real reason those 17 judicial nominations were on the Judiciary Committee’s agenda in the first place. Senate Rule 31 states that “nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.” That rule is routinely waived by unanimous consent. Democrats objected to waiving Rule 31 for a total of 100 nominees, sending 75 executive and 25 judicial nominations back to the president. All but two of these 17 judicial nominations were caught in that sweep.

On January 3, the president re-nominated these men and women, and the Judiciary Committee re-approved them on January 11, 2018, its first business meeting of the year. As of the date of the Democrats’ letter — May 10 — only two of these 17 had been confirmed. Looks like there’s no “rush to fill vacancies” left.

The other deception was the reference to Republicans voting “in lockstep to approve these nominees.” Sticking together to support judicial nominations of one’s own party did not bother Democrats when a Democrat was in the White House. On February 27, 2012, for example, then-Judiciary Committee chairman Patrick Leahy (D., Vt.) complained that, in three years, the committee had approved five U.S. District Court nominees on a party-line vote. This, he said, “depart[ed] dramatically from the long tradition of deference to home state Senators on district court nominees.”

Half of the Democrats on the Judiciary Committee — Leahy, Richard Durbin (Ill.), Sheldon Whitehouse (R.I.), Amy Klobuchar (Minn.), and Chris Coons (Del.) — have all served under Democratic presidents yet have never voted against a Democratic judicial nomination. Not once. In Leahy’s case, that covers more than 43 years and more than 1,900 confirmations. “Lockstep” may be in the eye of the partisan beholder, but that’s pretty impressive.

This report is 57 pages long. If the cover letter is any indication, the truth is going to take a beating. Strap yourselves in, it’s going to be a bumpy ride.

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


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