Grassley and McConnell need to get moving on judicial confirmations
The rot in many institutions cannot be undone in one presidential term or even two. In part that’s because of the entrenched permanent bureaucracy, in part because many (if not most) important institutions are not part of government.
Higher Ed is a prime example. Over two generations, faculty hiring and infighting has led to an environment at close to all top tier universities and colleges that is hostile to non-progressive ideas and people. Read about my alma mater, Hamilton College, for the script on how the takeover happened there, Western Civilization driven off campus at Hamilton College.
One institution that can be changed in a single presidential term (and definitely two) is the federal judiciary.
We have seen how lower trial and appellate court hostility to Trump has manifested itself in repeated injunctions against Trump’s executive orders on visas and refugees.
That those injunctions mostly were stayed by the Supreme Court in cases that now are now moot has not deterred the trial courts which have enjoined the third executive order. On a host of other issues courts, including the Supreme Court, have concocted constitutional arguments to dress up political arguments, rather than letting the political process work itself through.
While federal district court judges have lifetime tenure, there is a natural cycle of retirements that create vacancies. And those vacancies have piled up to the point that Trump has a generational opportunity to move the judiciary back to the center or even right of center in its approach to cases. We covered this in a post in late December 2016, Dems’ Nuclear Option will allow Trump to fill over 100 court vacancies quickly.
“Quickly,” however, is relative.
Nine months into the Trump first term, only 7 judges (including Supreme Court Justice Neil Gorsuch) have made their way through the confirmation process and been confirmed. There is a pipeline of judges who have been nominated, but not yet confirmed. As of today, there are 51 pending nominees for 150 current vacancies. There are an additional 17 known future vacancies for which there are three nominees.
Democrats have done everything in their power to slow down the process, including refusing to return “blue slips” (approval from home state Senators) and insisting on 30 hours of floor debate even on nominees they don’t oppose. It’s all a big stall that started early. In June, when it was clear that slow walking the process was the Democrats tactic, Chuck Grassley promised to speed things up, but it hasn’t happened.
While in raw numbers the confirmations are similar to prior administrations at this point in time (in addition to Gorsuch, 4 Circuit Court and 2 District Court confirmations), the broad-based stall is new particularly relative to the number of vacancies.
As of now, there are 9 Circuit Court and 16 District Court (including Court of Claims) nominees whose Judiciary Committee hearings have not yet been scheduled. There are 3 Circuit Court nominees and 9 District Court nominees awaiting Judiciary Committee vote, and another 2 Circuit Court and 12 District Court nominees who have been voted out of committee but not yet had a floor vote.
It’s time for Grassley and McConnell to get moving.
Grassley needs to overcome Democratic obstruction at the committee level, even if it means altering some non-rule traditions like the blue slip.
McConnell needs to free up as much Senate floor time as is needed for debate on nominees recommended out of committee so that the backlog is cleared this year. McConnell is feeling pressure, and has announced that the Senate will have to work more days and longer hours through year end.
And Trump needs to start feeding that pipeline of nominees so that by this time next year as many as possible of those remaining vacancies have been filled.
It’s a once-in-a-generation opportunity to turn around an institution. And it is at risk in the 2018 elections.
While it is unlikely, because of the math that Democrats have far more at risk seats than Republicans, that the Senate will switch hands, it’s not an impossibility. And we shouldn’t gamble with a once-in-a-generation opportunity.
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