As more and more Americans speak out about the dismal pace of the Senate’s judicial confirmations this year and the growing list of judicial vacancies, Judiciary Committee Chairman Chuck Grassley has responded to the criticism by constantly looking in the rearview mirror.
His latest came on Wednesday in an “update to my colleagues and the American people regarding the progress of judicial nominations.” The senator touts the fact that the Senate has already confirmed 317 of President Obama’s nominees, compared to 294 of President George W. Bush’s nominees confirmed at this same point in his presidency. Grassley also claims that the Senate Judiciary Committee is moving at the same pace this year as it did during the last part of Bush’s presidency. All in all, according to Senator Grassley, Senate Republicans are making “good progress” on President Obama’s nominees.
But Grassley’s rearview mirror has some blind spots. For starters, comparing total confirmed is only useful if each president faced the same number of vacancies. But as of today, President Obama has been tasked with appointing judges to 381 judicial vacancies, while President Bush had 377 judicial vacancies to deal with—during his entire presidency. That’s right, Obama already has had more judicial vacancies to fill than Bush ever faced, and Obama still has over a year left in office.
Last year, the Senate kept pace with the high rate of judicial vacancies that Obama is facing by confirming 89 of Obama’s nominees. This year, under Republican control, the Senate has shifted into reverse: only 10 judicial nominees have been confirmed. Ten. That’s the slowest pace in over 50 years—a pace not seen since the Eisenhower administration in 1960 when the Senate confirmed only 11 judicial nominees.
And that’s not to say that there hasn’t been a growing need to fill vacancies. Even with the 89 confirmations last year, the judiciary started this year with 43 vacancies. Now that the Senate’s confirmation machine has stalled out, that number has skyrocketed to 66. And here’s where the wheels start coming off the whole thing: the number of vacancies that have been declared judicial emergencies by the non-partisan Judicial Conference of the United States Courts has gone up from 12 at the beginning of the year to 29 today.
So what are Senator Grassley and the Republican leadership, including Majority Leader Mitch McConnell, waiting for to fill these vacancies? It’s certainly not nominees. There are 15 consensus nominees already approved by the Judiciary Committee that are simply waiting for a vote on the Senate floor. Seven of those nominees have the support of Republican home-state senators, and nine of them would fill judicial emergencies. Judge L. Felipe Restrepo, nominated to fill a judicial emergency vacancy on the Third Circuit, has been waiting in the Senate for over one year. Another nominee, Travis McDonough for the Eastern District of Tennessee, marks his one year nomination anniversary today. The current delay is simply inexcusable.
It’s clear that under the current Republican leadership, Senate judicial confirmations have careened off the tracks. Instead of looking backwards, Senator Grassley needs to look at the dire situation our overworked courts are facing today and shift the confirmation process—one of the Senate’s principal constitutional duties—back into drive.