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Rule change advances in Senate, will help Trump fill as many judicial vacancies as possible by November 2018 midterms

Rule change advances in Senate, will help Trump fill as many judicial vacancies as possible by November 2018 midterms

Senate Rules Committee advances measure to drastically cut floor debate time on nominees, Democrats’ most effective stall tactic.

At one level, Senate Republicans are doing a good job at moving Trump judicial nominees through the committee and confirmation process.

The Senate just confirmed the 15th nominee to a Court of Appeals, Kyle Duncan, about whom Democrats are apoplectic:

A lawyer who led the fight against Obamacare’s contraceptive mandate, eventually winning the Hobby Lobby case before the Supreme Court, won confirmation by the Senate on Tuesday to a federal appeals court.

Senators voted 50-47 to confirm Stuart Kyle Duncan to the 5th U.S. Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi. Only one Democrat, Sen. Joe Manchin of West Virginia, broke with his party to support Mr. Duncan.

Other Democrats voiced opposition to Mr. Duncan as an “unfit ideologue” on abortion and contraception. They also said his defense of state laws requiring photo-ID to vote, among other voting changes, amounted to voter suppression for minorities.

While 15 Court of Appeals judges is historically impressive, there remain a frustratingly large number of nominees who are being stonewalled by Democrats slow-walking confirmation floor votes:

Chuck Grassley has steadily moved judicial nominees through the Judiciary Committee, and has signaled willingness not to allow “blue slip” courtesies to turn into de facto filibusters. But even once nominees get through Committee, there is a further backlog whereby Democrats insist on a full 30 hours of debate for each nominee. So the pipeline gets clogged by Democrats first at the Judiciary Committee, and then by extended floor debate time.

This slow-walking has serious implications for Trump’s ability to act on the historic opportunity presented him to change the composition of the judiciary, which depends on Republicans holding the Senate. We have explored this problem many times before, including this post last November, Trump judicial confirmations moving along, but not fast enough:

While it’s unlikely, given the seats up for election, that Republicans will lose the Senate, it’s not impossible. If the Senate is lost in 2018, then so is the opportunity handed Trump to reshape the judiciary. So time is of the essence.

Every single vacant seat should be filled as quickly as possible. Some progress is not good enough. Grassley and McConnell need to clear all roadblocks, and Trump needs to fill the pipeline.

Politico reports that Mitch McConnell is sensitive to this point about confirming every nominee before November 2018:

Mitch McConnell is making a last dash to stock the judiciary with conservatives this year as a hedge against the chance that Republicans lose the Senate in November.

The GOP may have only a few more months of unified control of Washington to repeal Obamacare or enact President Donald Trump’s infrastructure plan. But the Senate majority leader is taking a longer view — and confirming as many conservative judges as possible to lifetime appointments….

Trump has already nominated 69 judges, but there are 149 total vacancies. GOP leaders say McConnell is intent on filling as many as he can this year, in part out of concern that Democrats take back the Senate and exact retribution on McConnell and Trump for changing the face of the courts.

“You have to be realistic about it and go into it with an expectation that [losing the Senate] is a possibility. And for that reason, I think it’s important that we move judiciously to get done as many as we can,” said Sen. John Thune of South Dakota, the No. 3 GOP leader.

We reported last December that a Proposed Senate rule change may speed through Trump nominees by limiting floor debate time.

That proposal just passed the Senate Rules Committee:

Looking to speed the confirmation process for a backlog of President Trump’s appointments, Senate Republicans on Wednesday advanced a measure to cut down on floor debate for certain executive branch and judicial nominees.

Republicans said Democrats forced their hand on the issue by making the Senate devote too much floor time over the past year to clearing procedural hurdles on even non-controversial and lower-level nominees.

“Pointless wasting time, even when we know what the outcome is going to be, is what we’re talking about here today,” said Senate Majority Leader Mitch McConnell.

The change, pushed by Sen. James Lankford, Oklahoma Republican, passed the Senate rules committee in a party-line vote, 10-9.

The change would cut the maximum debate time for non-Cabinet executive branch nominees from 30 hours to eight, and for district court nominees from 30 hours to two.

Carrie Severino from the Judicial Crisis Network provides this data at National Review:

Current and known future vacancies: 180

Courts of Appeals: 27

District/Specialty Courts*: 153

Pending nominees for current and known future vacancies: 72

Courts of Appeals: 12

District/Specialty Courts: 60

* Includes the Court of Federal Claims and the International Trade Court

There are 35 judicial nominees currently awaiting floor votes.

Limiting floor debate time will certainly speed the process, but Trump also needs to speed up the start of the pipeline, nominations.



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The Friendly Grizzly | April 26, 2018 at 8:08 pm

I wish a Supreme or several would suddenly er, retire.

Tis my greatest wish, Kennedy and Ginsberg are welcome to retire, any which way that will remove them from the SCOTUS.

    Joe-dallas in reply to oldgoat36. | April 27, 2018 at 11:11 am

    I would prefer sotomayer and ginsburg. Encinio motors highlighted ginsburgs dishonesty, while sotomayer is an obvious affirmative action promotion, not even remotely qualified.

      pwaldoch in reply to Joe-dallas. | April 27, 2018 at 11:36 am

      Does it matter what the qualifications are of any of the lib block of SCOTUS if they are just going to rule as activists and not at judges? They could be the most qualified jurists in history but if they are willing to throw out any pretense of ruling on the law and not their pet liberal causes, then it just doesn’t matter which lib judge goes.

        YellowGrifterInChief in reply to pwaldoch. | April 28, 2018 at 11:44 am

        It does matter that any of the con block of SCOTUS are just going to rule as activists and not at judges. They could be the most qualified jurists but their flawed conservative ideology, is what matters to becoming a con judge.

      snapper451 in reply to Joe-dallas. | April 27, 2018 at 4:13 pm

      Hold on, didn’t the Muslim in the White House call her “a wise Latino woman?”
      Don’t forget Kagan’s confirmation hearings when she was asked if she was a progressive and replied that she never heard the term before then!

The change, pushed by Sen. James Lankford, Oklahoma Republican, passed the Senate rules committee in a party-line vote, 10-9.

Good. Being distinct from—or opposed to—the D’rats is the Republicans’ job.

… but Trump also needs to speed up the start of the pipeline, nominations.

Unless there’s some reason to believe that the Repubs will manage to move faster if the line is longer, it’s not all that obvious that this will do any good. And it may hurt. The longer nominees have to wait on deck, the more time D’rat oppo research has to pretend to dig up dirt.

    oldgoat36 in reply to tom_swift. | April 27, 2018 at 9:59 am

    I would think Trump knows this as well, which could explain keeping the line shorter, while having a list ready to add to it as it moves along.

Good they’ve done it, but they’ve wasted so much time with 3 day work weeks and the 30 hour crap. I guess testament to the inertial that Trump is up against of ‘official’ DC. It’s all going to work out in the end…. and it will make these appointments all the more awesome for the next 25 years as we hear of ” Judge X, a Trump appointee ruled …. ” MAGA.

That they are all so insistent on putting him and his appointees through all of this crap validates everything negative about politics in DC and who they fear most.

    I’ve proposed this before. Set aside every week from Midnight on Saturday until 6AM on Sunday for the 30 hour debate on each nominee from that week all in one lump.

    Then Monday morning at 8AM (yeah, I know. They’re not even in DC yet on Monday) bring up the weeks nominees and vote on them, one, two, three, four… sixty-seven and done until this week’s batch goes to the Sat/Sun debate.

    Everybody gets 30 hours of debate to whine, moan, and screech about the nominees and their own little YouTube clip to post to show how huffy and puffy they got. And on we go.

JusticeDelivered | April 26, 2018 at 10:59 pm

Democrats will be constipated for decades over this. What is so funny is that they pushed Trump pretty far right, and they still do not understand the bigger picture of one after another of their self inflicted wounds.

Why Mitch didn’t do this 9 months ago is beyond me. The handwriting already was there.

    hrh40 in reply to Oregon Mike. | April 27, 2018 at 8:54 am

    I think Mitch thought the Dems would be more successful in taking out Trump at that point. Sad. But the fact that he’s finally doing this now is a good sign that Mitch knows the Dems aren’t going to succeed. In fact, Trump’s successes on the international and domestic fronts are piling up – even against Mitch’s own opposition – such that Mitch doesn’t want to be on the wrong side of history.

Should cut appeals court judge debate time to 5, or maybe 10, hours as well. And, maybe make 2nd tier of bureaucrats too.

Keep SCOTUS and cabinet level positions at 30.

I like the 2 hours though, I had been pushing for 3…

They should have done this at least 9 months ago though – once it became clear the D’s weren’t going to relent. They’d have been able to fill ALL of the vacancies prior to the elections this fall.

Mitch McConnell reminds me of Jeff Sessions…or vice versa!

assemblerhead | April 27, 2018 at 8:57 am

The only reason they made the change now … was to lessen the backlash they are going to get at the polls.

Backlash … from people like ‘me’ who know this should have been done a loooooooooong time ago.

One thing to always keep in mind, these changes, while good for stopping the stalling of the Democrats, can be used against Republicans if and when the majority shifts. Reid’s changes helped pave the way for getting things done by Republicans once the power party shifted.

I think that is why some of these changes get slow walked into place. Changing rules back is harder to accomplish.

    kenoshamarge in reply to oldgoat36. | April 27, 2018 at 10:27 am

    Yup, sauce for the goose is also sauce for the gander. The Dems learned that the hard way.

    That said, it seems this process is way to drawn out. Perhaps if those elected to do a job spent 40 hours a week doing it that might help.

    txvet2 in reply to oldgoat36. | April 27, 2018 at 11:50 am

    The flaw in your argument is that Dems will do it anyway, and excuse themselves by pointing out that Republicans were the ones who suggested it. We may as well be there first.

Senate procedural rule change.

It only cost the American taxpayer a $1.3 TRILLION crapulous sandwich. Thanks, Pauly & Yertle.

At least federal judicial ideology is on track to be pushed to the right for a generation.

This rules change would still have to pass the full Senate. I hear Susan Collins (of course) is opposed. Let’s not count chickens before they hatch.

The Senate is a disgrace. Harry Reid, following on years of Democrats behaving badly, wrecked it. McConnell is not being aggressive enough with repairs, although this is a good step. Senate traditions only work well when most of them are honorable, or wish to appear to be.

BierceAmbrose | April 27, 2018 at 8:11 pm

Every insane result in US Seante post 17th amendment traces directly to — er — that amendment.

For the people who wrangled that, that’s a feature, not a bug.