With the Senate out on August recess, it's a good time to reflect on what they have—and more importantly have not—accomplished. The have list is easy, it's short. The have not list is pretty humungous and pretty important, and topping it is judicial confirmations. Here's a
nonpartisan breakdown of the situation from Brookings.
The Senate began a month-long recess on August 7, having confirmed five judges in 2015 compared to 26 at this point in President Bush’s seventh year in office and 11 in President Clinton’s. Then, as now, the party that controlled the Senate hoped in 14 months to regain control of the White House and judicial nominations. […]
The Judiciary Committee is now chaired by Senator Charles Grassley (R-Ia). The 2015-16 Senate will likely not match its 1990-2000 and 2007-08 records. President Obama will probably appoint fewer circuit judges than did Clinton or Bush, and fewer district judges than Clinton. More important, unlike in those early periods, vacancies will likely increase.
This post compares the nomination-confirmation-nominee-less vacancy records at the August recess of these three president’s seventh year. Major findings:
- It is unreasonable to have expected the Senate to match the 26 confirmations during Bush’s first seven months of 2007 but not unreasonable to have expected one more circuit confirmation and five to seven more district confirmations.
- Some Senate Republicans are apparently using the Senate’s “blue slip” tradition to thwart confirmations by preventing nominations.
- Opposite party senators did the same thing during the Clinton and Bush administrations, but not to the same extent.
- Here is Senator Grassley’s explanation of why the Senate has only confirmed five judges so far this year: “Had we not confirmed ... 11 judicial nominees during the lame duck last year, we’d be roughly at the same pace we were for judicial confirmations this year compared to 2007.” Sixteen, though, is not “roughly” the same as 26; it’s a little more than half. More important, the proper metric for an effective confirmation process is not proportionality among congressional sessions.
The extent to which Republican senators have been refusing to cooperate with the White House and find mutually acceptable nominees is notable, to say the least, as has the general foot-dragging among Republicans once those nominations are finally made. Under Clinton, the median time a district nominee waited for confirmation was three months; under Bush it was five months. For President Obama, it's over seven months.
Then there's the vacancies. There are 54 current district vacancies and 15 soon-to-be vacant seats, and more than half of them—45 seats—have nominees. And guess which states are least likely to have a nominee? Yes, the 34 states that have at least one Republican senator. The median time that has lapsed since those 34 vacancies were announced and before a nomination is put forward is 14 months. In the 11 vacancies in two-Democratic senator states, that time lapse is just 5 months. That's just to the nomination stage, not counting confirmation. It's the same story with circuit court vacancies. There are eight of them and they are all in states with at least one Republican senator. The median length of those vacancies is 22 months, but one in Wisconsin has been vacant and without even a nominee for almost 5 years.
The Brooking's analyst, Russell Wheeler, concludes that all this "does not bode well for enough additional judicial appointments in 2015 and 2016 to reduce the number of vacancies." That's an understatement.