Bench Memos

Senate Democrats Show What Real Confirmation Obstruction Looks Like

(Unsplash)

On March 13, 2012, then-Judiciary Committee Chairman Patrick Leahy (D-VT) spoke on the Senate floor about the judicial confirmation process. He accused Republicans of applying “a different and unfair standard to President Obama’s judicial nominees.” Today, Leahy and his fellow Democrats are demonstrating just what real obstruction looks like.

Specifically, Leahy said that nominees to the U.S. District Court, by either Republican or Democratic presidents, had been “confirmed quickly” and “with deference to the home state Senators who know the nominees and their states best.” Obama’s district court nominees, however, “have been forced to wait more than four times as long to be confirmed by the Senate as President Bush’s district court nominees at this point in his first term, taking an average of 93 days after being voted on by the Senate Judiciary Committee.” This delay, he said, “is unprecedented and it hurts our system of justice in this country.”

So that’s the Leahy standard for the Senate handling nominees to the U.S. District Court. Deference to home state senators and quick confirmation; it should take far less than 93 days between Judiciary Committee approval and Senate confirmation.

Applying the Leahy standard to the confirmation process today is especially relevant because, as in 2012, the president’s party controls the Senate. It’s fair to say that failure to meet the Leahy standard can be attributed to the minority, in this case, to Democrats.

Let’s accept Leahy’s claim that 93 days between Judiciary Committee approval and final confirmation was “unprecedented.” Since Trump took office, his district court nominees have waited an average of 178 days between committee and full Senate approval. If the delay in 2012 was hurting our system of justice, what describes a delay that’s 91 percent longer?

Leahy might have added a few more elements to his standard. First, by the time he spoke in March 2012, the Senate had confirmed 103 of Obama’s nominees to the U.S. District Court, or 2.64 per month. Today, the Senate has confirmed 80 of Trump’s district court nominees, or 2.67 per month. If that was too slow in 2012, it’s too slow today.

Second, by March 2012, the Senate had taken a separate vote to end debate on just one of Obama’s district court nominee, or less than one percent. Ending debate and scheduling a final confirmation vote for the rest was done the easy way, by cooperation between the majority and minority leaders. Today, the Senate has been forced to take a cloture vote on 48 of Trump’s district court nominees, or 60 percent.

Third, only 19 percent of Obama’s district court nominees confirmed by March 2012 had any opposition at all, and received an average of fewer than four votes against confirmation. Today, 55 percent of Trump’s district court nominees have been opposed and have received an average of more than 15 votes against confirmation.

If Republicans were applying an “unfair” standard to Obama district court nominees, they were amateurs. For all the indignation in 2012 about politicizing the confirmation process and hurting the judicial system, Democrats have been showing Republicans just what serious confirmation obstruction looks like.

 

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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