By Michelle D. SchwartzcapitolbeautyshotNOFONT
AFJ Director of Justice Programs

Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January.  But the most important reasons for confirming judges during the lame duck would apply no matter who was slated to control the Senate next year.

Here are four reasons why the Senate should confirm at least 24 district court nominees—16 of whom are pending on the floor and eight of whom are ready to be reported out of the Judiciary Committee—before the end of the year:


  1. It’s the Senate’s job.  As AFJ President Nan Aron said with respect to Attorney General nominee Loretta Lynch, “The Constitution compels the Senate to live up to its responsibility to advise and consent at all times, including so-called lame duck sessions.”  That includes judicial nominees.  We were fighting for swift confirmations before the election and there’s no reason to stop now.
  2. The fair administration of justice demands it.  When judgeships sit vacant, it’s not the Alliance for Justice, the President, or the Senate that suffers—it’s the American people.  Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice.  These injustices are particularly acute in courts that have vacancies designated as “judicial emergencies” because they simply don’t have enough judges to handle their caseloads.  Paul Gordon at People for the American Way has done an excellent job documenting just how great the need is to fill the vacancies for which there are pending nominees.
  3. Delaying confirmations wastes time and taxpayer money.  When nominees are not confirmed before the end of a Congress, they must be re-nominated in the new Congress.  That’s not just a formality.  It means reams of duplicative paperwork for Justice Department and White House employees.  It means the Judiciary Committee has to waste time with duplicative confirmation hearings and committee votes for nominees who have already been vetted and approved.  And it means that precious Senate floor time is spent doing last year’s work.  Because Senate Republican obstruction led to a whole host of nominees being returned to the President at the end of last year, the Senate spent the first five months of 2014 voting on judicial nominees from 2013.  With so much that needs to be done for the American people, it makes no sense to spend next year doing this year’s work.
  4. The expiration of agreed-upon Senate rules changes could lead to even more time wasting.  At the beginning of the 113th Congress, an agreement was reached to reduce post-cloture “debate” time for district court nominees from 30 hours to 2 hours equally divided.  In practice, Democrats have yielded back their one hour of post-cloture time, meaning district court nominations have taken just one hour each after cloture is invoked.  That deal goes away at the end of this Congress.  So if Senate Republicans continue to insist on cloture votes for every single nominee (as they have for the past year), the Senate could spend 24 hours to confirm these 24 nominees now, or 720 hours to do the same work next year.  And keep in mind that the Senate can’t do anything else during post-cloture time unless all 100 senators agree.

These are the issues we’ve been talking about since well before the election, and they’re the reasons we’re continuing to fight for confirmations now.