90 Miles From Tyranny : Senate Picks Up the Pace in Confirming New Judges

Thursday, May 23, 2019

Senate Picks Up the Pace in Confirming New Judges

Senate Republicans used the so-called nuclear option April 3 to eliminate one of the Democrats’ tactics for slowing down the process for considering President Donald Trump’s nominees.

In a column here at the time, I wrote that Republicans “need to seize this opportunity so that the government that Americans elected in 2016 can function as it should.”

Let’s look at the record for the three steps in the presidential appointment process: nomination, Senate committee consideration, and full Senate approval.

When Trump took office in January 2017, judicial vacancies had jumped into triple digits for the first time in six years. They are actually 20% higher today.

Fifty-seven percent of those vacancies are designated as “judicial emergencies” by the Administrative Office of the U.S. Courts because they have been open so long and have a negative impact on caseloads.

Trump’s pace for making judicial nominations this year is about one-third slower than it was during his first two years in office. He has made nominations for 43% of the judicial positions that are currently vacant across the country, compared to 45% at this point for President Barack Obama and 84% for President George W. Bush.

The first part of the Senate’s confirmation process takes place in the Judiciary Committee. So far this year, under Chairman Lindsey Graham, R-S.C., the committee has held a hearing for 22 judicial nominees, compared to an average of 19 at this point in the third year of the previous five presidents.

Obviously, the Senate cannot confirm nominations the president has not made or the Judiciary Committee has not approved. The committee must do its part. That said, the most aggressive obstruction tactics occur on the Senate floor.

The first one happens when the Senate must end debate on a nomination in order to take a confirmation vote. This used to happen by informal agreement between the two party leaders.

When the minority won’t cooperate, Senate Rule 22 provides for a formal process that involves filing a motion and taking a separate vote to invoke cloture, or end debate. This can add days to the confirmation timeline, even for nominations that have little or no actual opposition.

As The Heritage Foundation’s Judicial Appointment Trackershows, the Senate has been forced to take 76 cloture votes on Trump’s judicial nominees, more than 10 times as many as at the same point in the previous five...

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