How partisan is the environment for judicial nominations these days? To answer that question, let us apply the Patrick Leahy standard, which was built nine years ago when the Vermont Democrat, at the time chairman of the Senate Judiciary Committee, took to the Senate floor to denounce a “Republican strategy to stall, obstruct, and delay” nominations by the president. “The casualties are the American people who seek justice in our increasingly overburdened federal courts today,” Leahy declared.
He complained not only about the number of judicial vacancies, but also the vacancies designated as “judicial emergencies.” The court system uses this label for vacancies that have been open so long that they have created a serious backlog of judicial caseloads. When Leahy spoke on this in 2010, 30 percent of the vacancies were emergencies. Today, overall vacancies are nearly 40 percent higher, and 60 percent of them have been designated as judicial emergencies. On average, the emergency vacancies have languished unfilled for more than two years.
Leahy had charged Republicans with launching a “partisan effort to block scores of nominations” that prevented the Senate from voting on them. One of the tactics Leahy identified involved Rule 31, which requires that pending Senate confirmations be sent back to the president when the first session of a two year Congress ends. Traditionally, the Senate waives this rule so that nominations stay and individuals need not be renominated.
Leahy was right on this. In December 2009, Republicans objected to waiving Rule 31 for a total of eight nominations, six to executive branch positions and two to judicial branch positions. Now fast forward almost a decade to January 2019, when Democrats objected to waiving Rule 31 for 209 executive branch and 76 judicial branch nominees. You will search the Congressional Record in vain for any word of concern from Leahy.
In 2010, Leahy also expressed his “concern about the new standard the Republican minority” applied to many of the district court nominees of President Obama. In the eight years of President Bush, he noted that the Senate Judiciary Committee reported one of his district court nominees by a party line vote. Republicans, Leahy complained, had already done so three times and would “look for any reason to oppose every nomination.”
President Trump is only halfway through his term in office and the Senate Judiciary Committee has already reported nearly two dozen district court nominees by a party line vote. Three such votes on Obama nominees had compelled Leahy to say, “I hope this new standard does not become the rule.” Seven times as many such votes on Trump nominees have drawn no hint of protest from the senator. Ironically, Leahy this month again took to the Senate floor to warn about the “destruction of long held norms and traditions” in the confirmation process. There is a lot of that happening.
This piece originally appeared in The Hill on 3/14/19