There are too many vacancies on the federal bench. Why is that? What kind of judicial-confirmation progress should we expect during the rest of the 116th Congress? We’ve known since Trump took office that the Democrats called for war on judicial nominees. Thanks to National Review for the by presidency statistics.
Why is there a need?
So Senate Democrats are sure to invoke the so-called “Thurmond Rule”. It shuts down the confirmation process early next year. The only thing is, the Thurmond Rule is not a rule. Oh, and it did not originate with Sen. Strom Thurmond. In fact, even calling it an informal tradition is too strong. So let’s recognize it for what it is; a political talking point.
A more important consideration is also the most practical. It is the work that needs to be done filling judicial vacancies. The judiciary cannot do its work without judges. The confirmation push in July means that, for the first time, judicial vacancies today are below their level when President Donald Trump took office.
Comparative vacancy rates
With that said, 12% of the judiciary is empty, compared with an average of 10% under the previous five presidents at this point. The judiciary remains in its longest period of triple-digit vacancies in nearly three decades.
The federal judiciary’s administrative office designates certain vacancies as emergencies. They make the designation for two reasons. Either they: have been open so long and/or have a negative effect on judicial caseloads. More than 55% of current vacancies are in this emergency category. That compares with an average of 41% at this point under the previous several presidents. Vacancies are 54% above the level Democrats said was a “crisis” under a Democratic president.
Keeping the urgent need to fill vacancies in mind it is instructive to look to history. The appointment process under previous presidents can provide markers for nominations. That is true in both Judiciary Committee hearings, and Senate confirmations. In the final 16 months of the first terms of former Presidents from Clinton to Obama made nominations for an average of 76% of the existing vacancies. That would amount to nearly 80 additional nominations by the end of next year. If all things were equal.
End of session action
During this period, the Judiciary Committee held an average of 20 confirmation hearings. That covered an average of 65 judicial nominees. Also hearings continued into the final months of each president’s first term. Under then Chairman Patrick Leahy the committee held a confirmation hearing on Dec. 12, 2012, more than a month after Obama’s reelection.
From the Reagan years through Obama’s first term, the Senate confirmed an average of 7% of the judiciary during a term’s final 16 months. Confirmations continued into October, November, and even December.
What happened under Obama?
During the Obama administration there were 93 vacancies in September 2011. The Senate confirmed 78 more judges, or 9% of the judiciary, over the next 16 months. Vacancies are 10% higher today. That translates into the Senate confirming at least 80 judges by the close of the 116th Congress.
During the entire first term of the previous five presidents, the Senate was forced to take a separate vote to end debate on a combined total of 14 of the 939 judges it confirmed. That’s about 1.5%. Democrats have already forced the Senate to take such a separate vote on 109 Trump nominees. That as they say is obstruction.
In 1997, with a Democrat in the White House, Leahy said “confirming federal judges should not be a partisan issue.” If that’s true, then we now have a sense of how the judicial-appointment process should operate for the rest of Trump’s term; right Senator Shaheen? There are too many vacancies on the federal bench. What are you going to do to speed up the process? We know what you have done to slow it down.