Senate Majority Leader Mitch McConnell is attempting to assuage the concerns that conservative activists have raised as late regarding the languid pace of judicial confirmations.
According to the Judicial Conference of the United States, 149 vacancies currently exist in the federal courts. President Donald Trump has named 50 judicial nominees since taking office, submitting a slate of approximately 10 candidates every month. Thus far, the Senate has confirmed just seven, including Justice Neil Gorsuch.
The president’s nominating pace is astoundingly fast compared to recent administrations. Former President Barack Obama named just 10 judicial nominees during his first year in office, including Justice Sonia Sotomayor. Former President George Bush named only four. Former President Bill Clinton’s only judicial nomination during his first year was Justice Ruth Bader Ginsburg. As such, the Senate has not been made to contend with so many nominees at this early stage of a presidency in modern history.
Still, conservative think tanks and advocacy groups like the Heritage Foundation and the Judicial Crisis Network (JCN) have registered their complaints with GOP leaders, fearing the dispirited Republican Senate caucus will forfeit an unprecedented opportunity to reshape the federal courts.
To this end, JCN planned to put $250,000 behind a digital advertising campaign in the Washington, D.C. market, urging McConnell to abolish procedural rules and traditions allowing Democrats to stymie judicial nominees, or stage marathon confirmation sessions to approve as many nominees as possible.
McConnell’s office intervened, and promised to huddle with the group in the near future.
“The campaign, including the advertising, is in a holding pattern for now because Leader McConnell’s office has reached out and wants to have discussions about how best to proceed in the coming months in order to avoid the kind of judicial confirmations bottleneck that the groups are concerned about,” a spokesman for the group told Politico.
McConnell has also endorsed the abolition of the last procedural mechanism by which the minority party may block nominees to the federal appeals courts. The majority leader told The New York Times in September that he is prepared to do away with blue slips, an informal but enduring Senate convention by which senators representing states where judicial vacancies occur are given some deference as to whether nominees for that seat will proceed. By tradition, the Senate Judiciary Committee will not schedule a hearing for a judicial nominee until the relevant home state senators return blue slips.
“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” he said.
He has also denounced Democratic obstruction on the Senate floor. When speaking before the confirmation of Judge Ralph Erickson to the 8th U.S. Circuit Court of Appeals, McConnell criticized Democrats for erecting needless procedural obstacles for consensus nominees.
“As I’ve noted before, the opposition they’ve shown to these nominees most of the time seems to have little to do with the nominees themselves, nor whether or not Democrats even support them — in many cases, our Democratic colleagues actually do support the nominees,” he said. “This has got to stop.”
Erickson was subsequently confirmed on a 95-1 vote after Democrats insisted on a cloture motion.
A final decision about the practice rests with GOP Sen. Chuck Grassley of Iowa, chair of the Senate Judiciary Committee. Democratic senators are currently withholding blue slips for several judicial nominees, including 8th Circuit nominee Justice David Stras and 9th Circuit nominee Ryan Bounds.
There are almost a dozen unfilled appellate vacancies arising from states with at least one Democratic senator. As such, it seems that a final confrontation over blue slips is inevitable.
The Senate is not in session this week.
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