Yesterday Carrie Severino of the Judicial Crisis Network (recall that, during the George W. Bush administration, this same group called itself the Judicial Confirmation Network) took to the National Review Online to scold Democrats for “whining” about the pace of judicial confirmations in the Republican-controlled Senate.
Citing the number of nominees who have had Judiciary Committee hearings, she argued that “[j]udges are moving along faster now than they did under Bush” in 2007, when a Democratic majority held the Senate. This argument not only gets the history wrong—conveniently omitting every relevant fact that disproves it—but ignores the essential need to fill vacancies and confirm judges no matter the historical precedent.
Before delving into historical comparison, consider how remarkably little this Republican Senate has accomplished. In nearly six months, the Senate has confirmed a total of two—two!—judges. There remain five more judicial nominees waiting on the Senate calendar, including three who have been pending since February, but Majority Leader Mitch McConnell has yet to schedule their votes. With so few confirmations, vacancies have shot up from 43 on January 1 to 57 (two more than when Obama took office in 2009) as of today. Moreover, the number of “judicial emergencies”—the official designation for courts without enough judges to handle existing caseloads—has doubled from 12 to 24.
Contrary to Severino’s assertion, things have not moved faster in committee. Severino makes the misleading claim that Judiciary Committee Chairman Chuck Grassley has “held five hearings and considered 14 nominees” this year, but fails to mention that only three of those hearings included nominees to Article III judgeships, for a total of 10 nominees. And for the hearing held on March 11, Grassley listed just two judicial nominees, passing over five nominees who had been nominated back in November 2014. Most egregiously, Grassley has forced Third Circuit nominee L. Felipe Restrepo to wait (so far) more than six months for a hearing, even though Judge Restrepo has the support of Republican home-state Senator Pat Toomey, and was confirmed to a district court seat without opposition in 2013.
With vacancies rising and qualified nominees pending, the Senate has a constitutional obligation to act, and that obligation does not depend on the historical pace of confirmations. Intentionally slow-walking nominees, as Senate Republicans have done all year, is nothing more than an attempt to score political points at the expense of everyday Americans who depend on access to courts and federal judges to protect their rights.
And yet, Severino’s claims fare no better even assuming that history is the relevant touchstone. At this point in 2007, Senate Democrats had confirmed 18 of President Bush’s judicial nominees, including three to the circuit courts of appeals. That Senate eventually confirmed 68 judges, meaning that more than 20 percent of George W. Bush’s judicial appointments came during his final two years. At its current rate, the Republican Senate led by Grassley and McConnell is projected to confirm a total of 9 judges. In addition, while President Obama has seen vacancy numbers rise during his seventh year in office, Senate Democrats had reduced vacancies from 56 to 50 at this point in 2007. Given this overwhelming disparity, it’s obvious that judges are not moving faster now than they were in 2007—they are, in fact, moving 89 percent slower.