An agenda disrupted by the coronavirus and squeezed by the election calendar pose new obstacles for Republicans in their drive to confirm dozens of judges to federal courts.
Senate Majority Leader Mitch McConnell’s motto is “leave no vacancy behind,” but the list of nominees idling outside the floor or awaiting action by the Senate Judiciary Committee or yet to sit for a confirmation hearing is getting longer. The last confirmation was nearly three months ago.
President Donald Trump has selected nominees for just over half of the 78 current or future federal district court and two appellate vacancies, according to a Bloomberg Law analysis of federal courts data. The Judiciary Committee will on Thursday consider sending several more trial court nominations to the floor for consideration. There are 10 of them awaiting action. But most of the president’s pending picks have yet to have a hearing.
“There’s just no way you can fill every vacancy. The more important question is how many vacancies will he (McConnell) have to try to fill?” said Russell Wheeler, a visiting fellow at the Brookings Institution who follows judicial nominations.
Trump has largely made good on a 2016 campaign pledge to reshape the federal judiciary with conservatives. At 189 district and appellate judges and two Supreme Court justices, he is 68 away from matching President Jimmy Carter’s record of judicial appointments in a first presidential term, according to a recent report by Wheeler. He’s eight away from matching the first-term record for appointing the most appeals court nominees. He’s at 51.
There are enough vacancies left to reach that milestone. The question is whether Trump will be able to do it, and that depends on a number of factors, Wheeler said.
At its fastest, a White House selection needs about a month to get from nomination to confirmation, but most don’t go through at that rate. District court nominees often take months to get through the process. Appeals court nominees, which have been a priority for the Senate in the Trump era, get through quicker.
A spokesperson for McConnell declined to comment on the strategy for achieving more judicial confirmations. But the official pointed to comments the Kentucky Republican made last month. He stood by his motto and said that the time away from Washington due to the pandemic and related legislative challenges would not prevent Republicans from achieving the goal.
The White House and Senate have prioritized nominees in states with two Republican senators, leaving them with a batch of vacancies in states represented by Democrats or with members split between the parties.
The Senate effort to pick up the pace started last week with a confirmation hearing for Trump’s controversial nominee to the U.S. Court of Appeals for the District of Columbia Circuit, Justin Walker. His nomination leapfrogged several others in the pipeline waiting for hearings, including Fifth Circuit nominee Cory Wilson.
The pandemic already has constrained the Senate’s schedule, causing it to lose the better part of a month. The outbreak also shifted its priorities to addressing that crisis through relief packages.
“Pretty soon it’s going to be impossible to fill all of those vacancies because the calendar is working against the GOP,” Carl Tobias, a law professor at University of Richmond who follows judicial nominations, said in an interview.
As the outbreak continues, it stands to shift the schedule for the rest of the year, which was already crafted to account for legislation like the defense reauthorization bill; the Republican and Democratic national conventions in the summer; campaign time for lawmakers seeking reelection in November; and the eventual post-election lame duck period.
Getting nominees though during the lame duck session is a possibility, and McConnell could schedule more votes in August, Tobias said.
“To keep things moving, the White House is going to have to step up its game too,” Tobias said.
Conservatives, however, argue confirming judges is essential and there’s still enough time.
“The appointment of federal judges who understand their critical role is to protect Americans from government overreach, especially during the coronavirus crisis, is the Senate’s essential business right now,” said Mike Davis, president and founder of Article III Project. It’s a conservative judicial nominations advocacy group that has championed many of Trump’s nominees.
Davis said McConnell won’t need to do much readjusting to get the remaining nominees through along with the remaining Senate work.
“The Senate can walk and chew gum at the same time as it has since our founding,” said Davis, who was chief counsel of nominations to former Judiciary Committee Chairman Chuck Grassley (R-Iowa).
There is also the possibly of a package of nominees agreed upon by Senate leadership that would be voted on together, which is more likely when the pool of nominees includes picks supported by both Republicans and Democrats.
The nominees awaiting votes on the floor include three for the Central District of California, an under-filled trial court; a nominee for the Eastern District of New York originally nominated by Barack Obama; two picks for the District of Arizona that received support from both home-state senators; and picks for the Northern District of Alabama and Middle District of Florida.
Ultimately, Wheeler said, McConnell will likely use the shutdown caused by the virus to his advantage in effort to continue voting on judges later in the year.
—With assistance from Nancy Ognanovich