An agenda disrupted by the coronavirus and squeezed by the electoral calendar presents Republicans with new obstacles when it comes to validating dozens of judges in federal courts.
Senate Majority Leader Mitch McConnell’s motto is “Don’t Leave Vacancies,” but the list of candidates who are idle off the floor or awaiting action by the Senate Judiciary Committee or pending a confirmation hearing wait gets longer. The last confirmation was almost three months ago.
President Donald Trump has selected candidates for just over half of the 78 current or future federal district courts and two open appeal positions, according to an analysis of the Bloomberg law on federal court data. The Judiciary Committee will consider sending several more court case nominations to the floor for consideration on Thursday. 10 of them are waiting for their action. However, most of the President’s outstanding decisions have yet to be heard.
“There is simply no way to fill every vacancy. The more important question is how many positions does he (McConnell) have to fill? “Said Russell Wheeler, a Brookings Institution visiting fellow following judicial nominations.
Trump has largely fulfilled a 2016 election promise to reshape federal justice with Conservatives. With 189 district and appeal judges and two Supreme Court justices, he is 68 years away from matching President Jimmy Carter’s record of appointing judges in a first term of office, according to a recent report by Wheeler. He is eight away from the record for nominating the most candidates to the appeals court. He’s at 51.
There are still enough vacancies to reach this milestone. The question is whether Trump will be able to do that, and that depends on a number of factors, Wheeler said.
In the fastest case scenario, it takes about a month for a White House selection to go from nomination to confirmation, but most don’t go through at that rate. District court candidates often take months to go through the process. Appeals court candidates who were Senate priority in the Trump era get through faster.
A McConnell spokesman declined to comment on the strategy for more legal affirmations. But the officer pointed to comments made by the Kentucky Republican last month. Sticking to his motto, he said that due to the pandemic and related legal challenges, spending time outside Washington would not prevent Republicans from achieving the goal.
The White House and Senate have prioritized candidates in states with two Republican senators, so they have a number of vacancies in states represented by Democrats or whose members are divided between the parties.
The Senate’s efforts to accelerate the pace began last week with a hearing to confirm Trump’s controversial candidate in the U.S. District of Columbia Circuit Appeals Court, Justin Walker. His nomination skipped several others in the pipeline awaiting hearings, including Cory Wilson, a Fifth Circuit candidate.
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The pandemic has already narrowed the Senate’s schedule, causing it to lose most of a month. The outbreak also shifted its priorities to dealing with this crisis through aid packages.
“Pretty soon it will be impossible to fill all of these vacancies as the calendar works against the GOP,” said Carl Tobias, a law professor at the University of Richmond who follows the judiciary’s nominations, in an interview.
As the outbreak continues, the schedule for the rest of the year, which has already been worked out to accommodate laws like the Defense Re-Approval Act, will shift. the summer republican and democratic national conventions; Election campaign time for legislators striving for re-election in November; and the eventual duck season after the election.
It is possible to get nominations during the Lame Duck session, however, and McConnell could plan more votes in August, Tobias said.
“To keep things moving, the White House must also step up its game,” said Tobias.
Conservatives, however, argue that verifying judges is important and that there is still plenty of time.
“Appointing federal judges who understand their vital role is to protect Americans from government excesses, particularly during the coronavirus crisis, is the Senate’s main business right now,” said Mike Davis, President and Founder of Article III- Project. It’s a conservative judicial nomination advocacy group that has championed many of Trump’s nominees.
Davis said McConnell didn’t have to adjust much to get the remaining candidates through along with the remaining Senate work.
“The Senate can walk and chew gum the same time it has been in existence,” said Davis, who served as chief nomination advisor to former Justice Committee chairman Chuck Grassley, R-Iowa.
There may also be a package of candidates that the Senate leadership has agreed on and will vote on together. This is more likely when the pool of candidates includes candidates who are backed by both Republicans and Democrats.
Candidates awaiting the vote include three for the Central District of California, a understaffed trial; a candidate for the Eastern District of New York originally nominated by Barack Obama; two tips for Arizona District, endorsed by 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 to continue voting on judges later in the year.
– With the support of Nancy Ognanovich