Bench Memos

Law & the Courts

Status Report on Judicial Nominations

In my New Year’s National Review essay providing a combined review and preview of the judicial-confirmation battles, I warned that two big obstacles threatened to continue to stymie judicial confirmations: on the front end, the blue-slip privilege, and on the back end, Senate Democrats’ insistence on requiring cloture votes. I also highlighted that the narrow 51-49 margin in the Senate made things difficult and that Senate Democrats, hopeful of regaining control of the Senate in November’s elections, would be doing their best to run out the clock.

Four months into 2018, let’s take a look at where things stand on judicial confirmations:

— So far this year, the Senate has confirmed three appellate judges—David Stras (CA8) in January, Lisa Branch (CA11) in February, and Kyle Duncan (CA5) just last week—and eleven district judges. That takes the totals from the outset of the Trump administration to 15 appellate judges and 17 district judges (plus, of course, Justice Gorsuch).

— Six appellate nominations are pending on the Senate floor: Kurt Engelhardt (CA5), Michael Brennan (CA7), Joel Carson (CA10), John Nalbandian (CA6), Michael Scudder (CA7), and Amy St. Eve (CA7). Senate majority leader Mitch McConnell has filed cloture motions on all six nominations. The vote on the first, on the Engelhardt nomination, is set to take place on the Senate’s return to business next Monday. The others, I assume, will follow thereafter. How long this process will take is unclear.

There are also 29 district-court nominations pending on the Senate floor. Five have been there for more than six months, and 25 for over a month.

— Two appellate nominees—Mark Bennett (CA9) and Andrew Oldham (CA5)—have had their committee hearing and await being reported out of committee to the Senate floor. Ditto for eight district nominees.

— Seven appellate picks await their committee hearing: Ryan Bounds (CA9), Britt Grant (CA11), Paul Matey (CA3), David Porter (CA3), and the three announced last week, Richard Sullivan (CA2), Jay Richardson (CA4), and Marvin Quattlebaum (CA4). Twenty-six district picks await their committee hearing, including five announced last week. (The nominations announced last week might not yet have been formally submitted.)

Ninth Circuit nominee Ryan Bounds was nominated in September 2017, after Oregon Democratic senators Jeff Merkley and Ron Wyden forwarded his name to the White House as one of four finalists chosen by their own judicial-selection committee. But Merkley and Wyden have submitted negative blue slips on him.

— By my count, there are an additional twelve appellate vacancies (current and declared future) awaiting nominees. Six of those are on the Ninth Circuit. There are roughly 80 district-court vacancies awaiting nominees.

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