Why Sen. McConnell Should Advance Qualified Judicial Nominees in the Senate

Washington, DC – Senate Majority Leader Mitch McConnell (R-KY) claims that under his leadership, the U.S. Senate is operating smoothly and in better accordance to its historical traditions. For example, in April, Senator McConnell said, “I think the way the Senate’s being run is very positive,” while claiming that, “a significant number of Democrats who have come over to me frequently and say, ‘Thank you for changing the way the Senate is operating.”

Yet when it comes to judicial nominees, Senator McConnell’s role in blocking and delaying confirmations is directly at odds with a functional Senate and the chamber’s best, historical traditions. In fact, the Senate has confirmed only 5 judges so far in 2015. The last time the Senate confirmed fewer than 10 judges in a single year was in 1953, when it confirmed only 9.

According to statistics compiled from the Alliance for Justice (AFJ), since the Republicans took control of the Senate in January, the number of judicial vacancies has increased from 43 to 63 and the number of "judicial emergencies" (designation for courts that don’t have enough judges to handle the volume of caseloads) has more than doubled, increasing from 12 to 28.

The most recent occasion when the Senate was in the hands of the opposite party of a second-term president was in 2007, when Democrats had control of the Senate during George W. Bush’s final two years in the White House. Yet the judicial nomination process was much smoother by comparison. By this point in 2007, Senate Democrats had confirmed 25 circuit court and district court judges. In fact, during the last two years of the George W. Bush administration, the Democratic-controlled Senate confirmed 68 judges in total.

As Bloomberg View columnist Jonathan Bernstein recently assessed:

“There’s simply no precedent for the Senate flat-out refusing to act on (most) nominations. It means poor government, mismanagement, justice delayed -- and therefore justice denied … It is the Senate's duty to defeat judicial nominees it believes (within reason) are outside the mainstream, and it absolutely should exercise the leverage it is given by the Constitution to secure influence over executive branch departments and agencies through confirmations. That’s not what’s happening here. McConnell and the Republicans are undermining the constitutional order by simply ignoring their responsibilities. That's a big deal, and the press and anyone who cares about a functional government should be angry.

Underscoring Bernstein’s point is the fact that Senator McConnell has even delayed confirmation votes for non-controversial nominees who end up passing with unanimous support – the height of delay for delay’s sake. For example, the only circuit court nominee confirmed in 2015, Kara Farnandez Stoll, waited more than two months on the Senate calendar before her 95-0 confirmation vote. Meanwhile, 5 U.S. Court of Federal Claims nominees remain pending on the Senate calendar. After Senator Chris Coons (D-DE) tried to get unanimous consent to approve these nominations earlier this week, Senator Tom Cotton (R-AR) blocked the request, despite the court’s chief judge urging the Senate “to fill at the earliest opportunity the five vacancies pending on our court.”

In 2008, McConnell said, “even with lame-duck Presidents, there is a historical standard of fairness as to confirming judicial nominees, especially circuit court nominees,” and noted that, “No party is without blame in the confirmation process, but what is going on now – or, more accurately, what is not going on – is yet another step backward in politicizing the confirmation process–something we had all hoped we would get beyond.”

We agree. Senator McConnell should live up to his past words and stated desire to preside over a functional Senate by advancing qualified judicial nominees without additional delay.