At the start of the Trump presidency, newly-gained Republican control of the White House and the Senate—the two Constitutional components responsible for naming and confirming Article III federal judges— suggested a rapid pace toward refilling the federal bench. It hasn’t necessarily turned out that way, at least thus far.
Yes, for the record books, President Trump in his first year nominated waves of federal judges, 69 in all, the most of any president since Ronald Reagan. And he secured the confirmation of a dozen appeals court judges, a historic first, along with the confirmation of a Supreme Court justice. But those accomplishments have been marginalized by procedural tactics mounted by Senate Democrats that have literally run the clock on Republican efforts to stay ahead of a growing mountain of judicial vacancies.
A Growing Judicial Vacancy Crisis
Judicial vacancies on the federal bench are significantly higher today than they were at the start of the Trump presidency, adding to the burdens the courts face in administering justice. When Donald Trump stepped into the Oval Office, Article III judicial vacancies stood at 108. Today there are roughly 150 vacancies on the federal bench, an almost fifty-percent increase. Seventeen percent of Article III judgeships stand vacant. Nearly 75 of them are considered “judicial emergencies” by the Judicial Conference of the United States because of their high caseloads, the length of the vacancy, or both.
The principal cause lies in the time-consuming delay associated with the Senate’s final step of the judicial confirmation process –an up-or-down floor vote. Judicial nominees are being named by President Trump and rolling through the turnstiles of the Senate Judiciary Committee at a relatively fast clip. They are running into a logjam only when they take their place in the queue of nominees who await a final vote. By April 1, the Senate floor queue had grown to 32 (4 circuit and 28 district) nominees, in comparison to the 18 nominees cleared by the Senate in all of last year.
The Thirty-Hour Rule: The Last Weapon of Delay
In the newest phase of the Senate’s three-decade long judicial confirmation wars, Senate Democrats are using procedural tactics to slow the confirmation process to a crawl, invoking the Senate’s “30-hour rule” with regularity. The rule is the last weapon available to the minority through lengthy debate. Under the rule, up to 30 hours of debate on a single nomination can be required, which minority Democrats have regularly requested. While the hours tick by while a nomination is on the floor, the Senate is precluded from considering other major floor business, holding up bills and other nominations.
During confirmation of Trump’s first twenty-nine judicial nominees, Senate Democrats invoked the Senate’s 30-hour rule twenty-eight times, limiting judicial confirmations to a handful of nominees a week. At that pace, the Senate may potentially confirm no more than 50 additional judicial nominees by November’s midterm elections. The possible retirement of a Supreme Court justice later this summer could further slow the pace of circuit and district nominations, even if the Judiciary Committee pursues a two-track approach.
Can the Logjam Be Broken?
Relief to the nominee logjam could possibly come in a Republican-led change in Senate Rule 22 and the thirty-hour debate provision. Sen. James Lankford (R-OK) is promoting a proposal to downsize Senate debate time on cloture votes to as few as 8 hours. But Republicans are aware of the consequences of rules changes that could later come back to haunt them when they become the minority. Some Democrats today bitterly rue their decision to reduce the 60-vote cloture requirement to a bare majority on district and circuit court nominees when they controlled the Senate in 2013.
Relief could also come if Majority Leader McConnell decided to keep the Senate in session, past their usual Tuesday-Thursday schedule, and remain in Washington to vote on nominations, instead of returning home early for the weekend. McConnell tried that approach once earlier this year, producing a spate of confirmations. A teacher’s disciplinary threat of denial of recess can keep elementary school children in line. It might provide a lesson for the Senate and the reduction of its judicial nominee queue.