Conservatives can’t tell Majority Leader Mitch McConnell, R-Ky., just how grateful they are for confirming President Trump’s Supreme Court nominees. They just want him to do more for the lower court judges.
Democrats went nuclear when they were in control, allowing simple majorities for judicial confirmations. But this coalition of conservatives wants McConnell to launch a pinpoint, parliamentary strike. A dozen groups, led by the Texas Public Policy Foundation, are now asking the leader to limit debate on judicial nominees.
“The Senate’s procedural rules are being used to slow the judicial confirmation process, even for nominees who enjoy bipartisan support,” their letter reads. “The rules currently require the Senate to consider a nominee for thirty hours after cloture is invoked,” the conservative coalition writes. “This time should be reduced to keep the process moving forward and to allow judicial nominees to be confirmed in a timely manner.”
The letter, co-signed by the likes of Heritage Action and the Goldwater Institute, identifies a real problem for Republicans. McConnell might be master of the Senate but Minority Leader Chuck Schumer, D-N.Y., has been able to gum up the works all the same. At the time of the letter’s publication, there were approximately 152 vacancies on the federal judiciary and 85 pending nominations.
Those vacancies are easily overlooked in the wake of Supreme Court Justice Neil Gorsuch’s confirmation and Judge Brett Kavanaugh’s pending nomination. But as then-Texas Supreme Court Justice Don Willett told me in September 2016, those lower court judges have a tremendous amount of clout.
“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Willett explained, “while the 13 federal courts of appeals handle about 35,000.” Fifty-two of the 179 judges on federal appeals courts owe their seats to Obama. “That’s a legacy with a capital L,” said Willett, now a judge on the U.S. Court of Appeals for the 5th Circuit.
This fact has not been lost on Democrats. To preserve former President Barack Obama’s judicial legacy and to strangle Trump’s, they have perfected what the New York Times calls “the art of the delay.”
Even without a filibuster, Democrats have brought judicial confirmation to a crawl. They’ve demanded every nomination get a cloture vote and an intervening day to allow the request, in parliamentary terms, to ripen. Per the rules, another 30-hours of “post-cloture” debate is required before the final vote.
That is a tedious process magnified exponentially in proportion to the backlog of judicial nominations. And that is why the conservative coalition want the rules to change.
“Maintaining the status quo will have a detrimental impact on an overworked judiciary,” they write. “Reducing post-cloture consideration time will help the judiciary to function more efficiently and allow the Senate to focus on other legislative matters.”
McConnell might want to consider their request. The Senate has already canceled most of its summer vacation and now the conservative coalition “respectfully requests that you use the remainder of the summer to clear the deck, so that we may have a full, robust judiciary at work for the American people.”
