Today, 17 percent of the federal judiciary is empty. That is the case even though President Trump is making more nominations, and the Senate Judiciary Committee is holding hearings for more nominees, than under previous administrations. Vacancies continue to increase because of a deliberate organized campaign by Democrats to stymie confirmations on the Senate floor. The result is the longest period of triple digit vacancies in more than 25 years. The Republican majority in the Senate has now acted to address one of the obstruction tactics of the Democrats.
What kind of confirmation progress should we expect now? This involves Rule 22, which provides a time consuming process to end debate, a necessary step before the Senate can vote on confirmation. Under Rule 22, even when the Senate votes to end debate, there can be up to 30 more hours of consideration. In the past, the minority party cooperated to informally schedule a final confirmation vote. Today, Democrats will not cooperate on anything, forcing the Senate to use this drawn out process for nearly every nomination, including those with no actual opposition.
The Senate has taken six times as many of these unnecessary cloture votes as during the same period under the previous nine presidents combined. You read that right. Even though the Senate votes to end debate every time, Democrats insist that the clock keep running for those 30 hours of debate after cloture. Even worse, they almost never spend time on the Senate floor actually debating these nominations.
Something has to give, and here is what Republicans have done. Senator James Lankford introduced Resolution 50 in February to reduce the available debate time after cloture to two hours for nominees to the United States District Court, the United States Court of Federal Claims, and most executive branch positions. The limit would remain at 30 hours for the rest. That is a rather modest response to this part of the systematic obstruction strategy of the Democrats. In fact, it is almost identical to a rule the Senate adopted during the 113th Congress by a vote of 78 to 16.
Last week, Democrats filibustered Resolution 50 to prevent the Senate from even considering it. They agreed to this reform in 2013, when a Democrat was in the White House, but oppose it now with a Republican president. As the Senate invoked cloture on the next executive and the next judicial nominee on the calendar, Majority Leader Mitch McConnellmade a point of order that debate would be limited to two hours, and the Senate voted to ratify that position and establish the precedent.
That is certainly not the ideal way to run the Senate, but the highest sustained level of vacancies in history on the United States District Court, where people first bring their cases, is just as unacceptable. So is the unprecedented abuse of Rule 22, using nominees to important positions as simply another front in the fight of Democrats against Trump.
The 113th Congress provides a benchmark for measuring confirmation progress going forward because a similar limit on debate governed then. Several things changed during the 113th Congress. The Senate repeatedly took multiple cloture votes, up to even six or seven, on nominations in the same day and confirmed dozens of nominees within a few hours of invoking cloture. The Senate confirmed 134 judges during the 113th Congress, the second highest total in history. More importantly, 109 of these were nominated to the United States District Court, subject to the same debate limit of two hours that the Senate now has in place.
Our current expectations should be even higher because the vacancy crisis is so much worse. The 113th Congress opened with less than 77 judicial vacancies. Today, there are 152 judicial vacancies. Of those, 88 have been designated “judicial emergencies” because they have been open so along and have such a negative impact on caseloads. The 113th Congress opened with just 11 judicial nominees on the Senate calendar waiting for confirmation. Today, 42 judicial nominees are on the calendar with more to be approved soon by the Senate Judiciary Committee.
The numbers paint a striking picture of the process. The same rule now applies to ease cloture and confirmation of United States District Court nominees as during the 113th Congress, when the Senate confirmed a near record number of nominees during those two years. Republicans can prove that removing this procedural obstacle was the right move by matching or exceeding that confirmation output to the judiciary.
This piece originally appeared in The Hill on 4/9/19