WASHINGTON, D.C.—Conservatives are increasingly frustrated over the slow pace of the Senate’s confirming President Donald Trump’s judicial nominees, and are calling for swift action from Senate Majority Leader Mitch McConnell (R-KY).
Per Article II of the Constitution, every federal judge must be nominated by the president and then confirmed by the Senate. Nine months into the president’s term, a Senate controlled by the president’s party has confirmed only seven nominees out of 56, including one Supreme Court nomination.
Justice Neil Gorsuch was a unique case. It had been decades since there was a pending vacancy on the Supreme Court when a new president was sworn in, and there was a media frenzy that shined such a spotlight on the affable and mild-mannered appeals judge that it inescapably resulted in a speedy confirmation process. Senators get no credit for managing to confirm him, though they do deserve credit for keeping the seat of the late Justice Antonin Scalia open, and for invoking the nuclear option to ensure Justice Gorsuch’s ascension.
However, since Justice Gorsuch’s confirmation, the Senate has confirmed only six judges—less than one per month of the Trump presidency. At this rate, President Trump will see only a fraction of his 150-plus current and forthcoming nominations confirmed by the end of this four-year term. Supporters of a judiciary that is faithful to the Constitution as written lay all the blame squarely on the Senate, and are pushing McConnell to do several things within his power to rapidly accelerate this process.
As a recent memo from the Conservative Action Project pointed out, in recent years the Senate has often been working only 2.5 days per work week. This does not even consider days or weeks when the Senate is in recess. Since May 1—days after Justice Gorsuch joined the High Court—the total number of Monday-Friday standard work days where the Senate has been in recess exceeds 31. In other words, more than a full month in recess during what are working days for most Americans.
The number of vacancies in the federal judiciary is skyrocketing. President Trump inherited 107 open seats when he took office, more than any of the past five presidents except President Clinton. George H.W. Bush had 41, Clinton had 117, George W. Bush had 84, and Barack Obama had 55.
The initial number has increased rapidly; there are currently some 145 judicial nominees. When you add the number of judges who have explicitly signaled their retirement but not yet stepped off the bench, that number jumps to 166.
The roadblocks to judicial appointments have arisen at two levels: the Senate Judiciary Committee (SJC) and the Senate floor. Most of the committee roadblocks have been plowed through, but not so on the floor.
Chairman Chuck Grassley (R-IA) of the SJC has recently taken major action to move nominations forward. Just last week, Grassley held hearings for five judges on Tuesday, then a full dozen on Thursday, for an impressive total of 17.
Groups are urging Grassley to take the one remaining measure within his power, pertaining to blue slips. Home-state senators receive a blue piece of paper when someone in their state is nominated for a federal judgeship, asking if the senators support or oppose the nomination.
While most SJC chairmen do not treat this as a one-senator veto power by refusing to return the blue slip, Grassley has. This has blocked the nomination of Justice David Stras of the Minnesota Supreme Court to be a judge on the U.S. Court of Appeals for the Eighth Circuit, because Sen. Al Franken (D-MN) refuses to return his blue slip.
Grassley has signaled that he is getting impatient, however, so that final roadblock may move soon. And Grassley’s recent pace at moving nominees through his committee is earning him a lot of goodwill on the issue.
No so yet with the Senate floor. Senate Democrats are slow-walking nominations, including requiring cloture votes on many nominees, then consuming all 30 hours allowed under Senate rules of post-cloture debate. But those rules are subject to reinterpretation by a simple majority of 51 senators. There are 52 Republicans in the Senate, plus Vice President Mike Pence to cast tie-breaking votes.
Senate Republican apologists point out that Bush 43 and Trump have both made 56 nominations to date, and that the Senate has confirmed an equal number for both at this point on the calendar.
That analogy fails, however, because Bush had to deal with a 50-50 tied Senate that shortly thereafter became 51-49 Democrat-controlled. Moreover, President Trump has twice the number of vacancies to fill that Bush had, so it is imperative for conservatives and Republicans to confirm the pending nominees to make room for more.
McConnell is promising to take major action on judges now that the budget has been passed. Voters are watching to see what will happen next.