Bench Memos

Senator McConnell on Judicial Confirmations

In the wake of the Senate’s confirmation of 19 of President Obama’s judicial nominees during the lame-duck session, Republican leader Mitch McConnell has issued a statement (not available online yet, I think) citing the “bipartisan progress on judicial nominations.” I’ll summarize here Senator McConnell’s points and call special attention to items 4 and 7:

1. Despite all the time and attention that the Sotomayor and Kagan nominations took, the Senate was able to confirm 60 lower-court nominations during the 111th Congress. By contrast, in 2005 and 2006—the last time the Senate confirmed two Supreme Court nominees in a single Congress—only 51 lower-court nominations were confirmed.

2. Senate Democrats obstructed President Bush’s Fourth Circuit nominees, leaving that court almost one-third vacant. But the Senate during the 111th Congress confirmed nominees to all four vacancies.

3. President Obama “has failed to even nominate individuals for most of the current district court vacancies”—only 34 nominations for 76 vacancies. For the courts of appeals, Obama has failed to make nominations for seven of the 16 vacancies.

4. Four of the judicial nominations remaining on the Senate floor—those of Goodwin Liu to the Ninth Circuit and Louis B. Butler Jr., Edward Chen, and John J. McConnell Jr. to district-court seats—are “very controversial” because the nominees’ “statements, writings and records show a willingness to put their own views ahead of the dictates of the law and the Constitution.” Senate Republicans “are not prepared to consent … to a process that will facilitate their confirmation.”

5. The remaining 15 nominations on the Senate floor weren’t reported out of the Judiciary Committee until December.

6. The progress on judicial nominations during the lame-duck session compares favorably to that in other lame-duck sessions. In the lame-duck session in 2008, no judicial nominees were confirmed. In the lame-duck session in 2006, Democrats did not consent to confirm any judicial nominees, and a cloture vote was required on the one nominee who was confirmed. In the lame-duck session in 2004, only three nominees (all for district courts) were confirmed.

7. Senator McConnell is hopeful for continued bipartisan work on judicial nominations in the next Congress. President Obama can show his own commitment to bipartisanship “by not nominating or re-nominating judicial nominees who show a willingness to follow their own beliefs.”

Kudos to Senator McConnell for making quite clear that President Obama should not renominate Goodwin Liu.


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