It's Friday, September 30, and Day 229 since Justice Antonin Scalia died and Mitch McConnell decided no nominee would get any Senate attention: No meetings, no hearings, no votes. It's also Day 198 since Merrick Garland was nominated by President Obama to fill that vacancy.
The Senate chamber is quiet today, everyone having left town after patting themselves on the back for getting the bare minimum of work done in the few short weeks they were working following their seven-week long "August" recess. So now's a good time to revisit this report from Brookings, published on September 6.
As it reconvenes after its summer recess, Congress faces the prospect of a partial government shutdown by month’s end. Federal courts are already partially shutdown. Of 852 federal district and circuit judgeships, 87 were vacant on September 6. Thirty-eight of the 49 pending nominees have been waiting longer than has Judge Merrick Garland, who was nominated to the Supreme Court by President Obama on March 16. These vacancies, many of which are longstanding, have serious consequences for litigants and for sitting judges on vacancy-riddled courts in Texas and other states, as explained here and here.
As documented below, the current Senate has veered from the precedents created by recent similarly situated Senates. Since the January 2015 shift in Senate party control, district and circuit vacancies have more than doubled while confirmations have grown by less than a tenth. The question is whether this Senate will also veer from precedents for post-recess confirmations.
It wasn't really a question, was it. Because everybody knew what was going to happen on nominations this month. Nothing. There hasn't been a confirmation of a federal judge since July 6.
Whatever the outcome of the election in November, when the Senate returns on November 14, don't expect a massive reversal from McConnell. If Donald Trump wins the presidency, he won't want any of these vacancies filled by Obama nominees. If Hillary Clinton wins the White House, he'll want to hamper her first few months in office by forcing her to make all these nominations anew. If he loses the Senate to Democrats, same thing—he'll want to force the majority to deal with the crisis in the judiciary. If Republicans keep the Senate, he'll gloat his way through the last month's of obstruction of this president he hates so much. Bottom line, McConnell isn't going to give President Obama anything.
Not because of any principle. Not because he believes any of these nominees aren't fit to be in the judiciary. Because he hates the fact that this black man became president. Don't expect him to be willing to do anything more for the first woman president, either. That's why we have to take the Senate back.
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