Bench Memos

Law & the Courts

The Battle for Judicial Confirmations Commences

The judicial confirmation train has left the station.

The Senate Judiciary Committee today reported 44 judicial nominees to the full Senate, as well Bill Barr’s nomination for attorney general.

It’s the first batch of judicial nominations to advance under the chairmanship of Sen. Lindsey Graham (R., S.C.).

That’s the good news. But it’s not as encouraging as it might sound.

First, all of the judicial nominees are actually re-nominees. During the 115th Congress, President Trump made more nominations than any of his predecessors had. But the Senate confirmed a historically smaller percentage of them. As a result, a record 69 judicial nominations expired without final Senate action and were returned to the president.

With a new Congress in town, Trump renominated 54 nominees who had been left hanging last year. All those approved by the committee today were in that batch. Each had a hearing last year, and 18 had already been approved by the Judiciary Committee.

Now they are before the full Senate, ready to be confirmed. Unfortunately, we can expect the Democrats’ obstruction tactics to continue.

Those tactics have been destructively effective. They have left more than 16 percent of the federal judiciary vacant. Vacancies are now nearly 30 percent higher than when Trump took office. We remain mired in the longest period of triple-digit judicial vacancies in 25 years.

Yet some Democrats seem determined to deploy new obstructionist tactics. Senate rules prohibit committees from meeting longer than two hours after the full Senate comes into session. That rule is routinely waived by unanimous consent, but today Democrats objected to waiving it. That meant that, since the Senate began at noon, the Judiciary Committee’s business meeting would have to stop at 2 p.m.

Democratic senators tried to make the meeting last that long. They indulged in seemingly endless speechifying and forced the committee to take separate roll-call votes on more than three dozen nominations. Thankfully, enough members remained to maintain a quorum, and Chairman Graham kept the votes humming so the committee could report the full roster of nominees.

There was a disturbing pattern to the voting, however. More than a dozen nominees to the U.S. District Court were approved by a party-line vote. Senator Patrick Leahy (D., Vt.), who chaired the committee under Presidents George W. Bush and Barack Obama, once criticized Republicans for this practice.

District-court nominees always have the support of their home-state senators and nearly always have strong bipartisan support. The meeting today signaled that indiscriminate, unprecedented opposition will continue for even the least controversial Trump nominees.

In addition to these re-nominations, Trump started making new nominations on January 17, and the Judiciary Committee’s hearing schedule can’t start soon enough.

Thomas Jipping — 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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