Senate Republicans failed miserably in recent few months to confirm dozens of excellent judicial nominees. Shame on them. They should return to work between Christmas and New Year’s Day to confirm at least a few nominees who have waited the longest.
Because judicial nominations are not subject to Senate filibusters (meaning they can pass with 50 votes plus Vice President Mike Pence, rather than 60), and because they are so valued by conservatives, Senate Republicans could have more easily pleased their core supporters on judges than on any other subject. But after doing well on this front for 18 months, Republicans lost focus. Unless something drastically changes in the next 36 hours, 57 nominations will expire without receiving a vote when this Congress adjourns.
President Trump, of course, can renominate all 57, but moving them through the process in a new Congress will take even more time and energy. Worse, it will probably consign dozens of court cases to judges more liberal than most of these nominees.
It is true that one Republican, outgoing Sen. Jeff Flake of Arizona, is responsible for blocking 25 of the nominees. Flake’s perch on the Judiciary Committee lets him join with Democrats to create a committee majority to block any nominee who hasn’t already received a committee vote. Flake has been holding those 25 hostage by demanding a Senate floor vote on his bill to protect special counsel Robert Mueller’s investigation.
Flake’s stance is obnoxious, but he has nothing to lose: He’s leaving the Senate anyway. And even if his bill protecting Mueller gets a vote, it has no chance of passing the House, so it hurts nobody to let it go forward. That’s why Senate Majority Leader Mitch McConnell for once should have succumbed to a colleague’s nasty tactics: The price of bowing to Flake (a meaningless vote) is worth the reward of confirming judges.
Still, though, there are 31 other nominations that already have passed the Judiciary Committee which presumably could attract 50 Republican floor votes even without Flake’s support. Those 31 have been sitting there, available for confirmation votes, but McConnell hasn’t made time for them.
Granted, Democrats have been using delaying tactics to stall even those nominations they don’t have the votes to defeat. They can demand up to 30 hours of debate on any nominee once cloture has been filed. McConnell obviously has other priorities, too, some of them important. He doesn’t want to take 30 valuable hours of floor time on each nominee.
Still, he has filed cloture motions on only nine nominees in the past six months. On the 31 remaining, he hasn’t even tested the Democrats to see if they actually will find the energy to use up all 30 hours of debate. Nor has he kept the Senate in session around the clock or on weekends since Thanksgiving, in order to force some of the nominees through.
Some of these nominees passed the Judiciary Committee 10 months ago. There’s no excuse for a Republican majority failing to find time to advance them for nearly a year.
The takeaway is this: McConnell and company did well early in Trump’s term at confirming judges, but badly lost their focus and willpower after the battle to confirm Supreme Court Justice Brett Kavanaugh.
Their failure is inexcusable. The outgoing Senate should stay in session right through New Year’s Eve, if necessary, to do this job right.
