Benched!Last week, when asked if only district court judicial nominees—signed off on by Republican senators—would be confirmed this session, Senator Majority Leader Mitch McConnell responded that it was “highly likely.” Later, a spokesperson clarified that “[w]e probably will have a circuit court nominee” confirmed.

Either way, these comments represent a major retreat from the “regular order” McConnell promised upon becoming majority leader. Both Republican and Democrat-controlled senates have confirmed appellate court nominees in the final two years of an opposition presidency, usually in states with a senator from the president’s party. This Senate, by contrast, has failed to confirm a single appellate court judge.  Under Senator McConnell’s leadership, eminently qualified nominees have been slow-walked through every step of the process.

L. Felipe Restrepo, a nominee to the Third Circuit, has waited over 200 days for a hearing in the Senate Judiciary Committee despite support from Republican Senator Pat Toomey. Judge Restrepo will finally have his hearing tomorrow afternoon. Soon after, the committee should report him to the Senate floor. How long his nomination languishes there will be yet another test of McConnell’s commitment to regular order.

In the last Congress of President George W. Bush’s second term, Senate Democrats confirmed 10 circuit nominees. They included vacancies in states represented by Republicans, Democrats, and mixed delegations. Most notably, Judge Leslie Southwick was confirmed to the Fifth Circuit despite opposition from progressive advocacy groups and three-fourths of the Democratic caucus.

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President Clinton’s final two years were no different. The Republican-led Senate confirmed 15 circuit nominees, and every one of them were from Democrat-controlled or mixed delegation states.

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In President Reagan’s final two years, Senate Democrats confirmed 17 circuit judges. A plurality of those judges was from Republican-controlled states.

 

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“Probably” confirming “a circuit court nominee” would make this Senate historic—just not in the way Senator McConnell would like. It would mark an unprecedented level of obstruction rather than the regular order the American people were promised. Our nation’s appellate courts need to be filled. It’s time for the Senate to start confirming judges.