Senate Does 1/18 of the Work It Could Have Done

It used to be fairly routine for the Senate to confirm handfuls of judicial nominees – especially district court nominees – at a time. Indeed, Senator Patrick Leahy recently recounted that the Senate confirmed 18 of President George W. Bush's judicial nominees in one day. The Senate could have equaled this impressive feat on Monday, when a total of 18 nominees were ready for a vote, and time was scheduled on the calendar for a confirmation vote. But instead, just as it has for the last two weeks, the Senate confirmed one district court nominee. One!

And it's not as though the nomination required extended debate, or that the outcome was seriously in question – Kevin McNulty, nominated to the district court in New Jersey, was confirmed on Monday by a vote of 91-3. So why wouldn't the Senate just vote on all 18 – or 14 (the total number of district court judges ready for votes), or seven (the total number of nominees approved by the Senate Judiciary Committee through April 19, the day now-Judge McNulty was voted out of committee), or six (the number of judicial emergencies among those nominees), or even two (there is another nominee from New Jersey, voted out of committee the same day as Judge McNulty) nominees?

Well, simply stated: obstruction.

It's no secret that unprecedented obstruction in the Senate has slowed the accomplishment of the people's business to a crawl. And the judicial confirmation process has been no exception. (For those who would say that Majority Leader Reid is responsible for scheduling votes on judges, I would point out that there must be unanimous consent to hold confirmation votes, and if a Senator in the minority objects, Majority Leader Reid either has to go back to the negotiating table or file a cloture petition to force the vote). In December 2011, the minority in the Senate refused to allow votes on more than one nominee before the Senate left for the year. The Senate confirmed no nominees in January 2012, and confirmed only four in February (it's a short month, but still).

In March, after two more votes in the first half of the month, Senate Majority Leader Reid took the extraordinary step of filing cloture on 17 nominees (which resulted in a deal providing for votes on 14 nominees). After the "deal" came to an end at the beginning of May, there were three confirmations one week, two confirmations the next, and one cloture vote followed by a confirmation vote the week after that. During that whole time, the number of judicial vacancies never dipped below 73, the number of judicial emergencies never went under 29, and there have always been at least 15 nominees ready for a floor vote at any one time.

So things were moving slowly enough as it was. But then, in mid-June, Senate Minority Leader Mitch McConnell threw down the gauntlet. He announced that the minority would be invoking "the Thurmond Rule," which he defined as slowing down judicial confirmations, particularly of appellate court nominees, in election years. Now, there is substantial debate as to whether the so-called "Thurmond Rule," named for former South Carolina Senator Strom Thurmond, even exists – in 2008, Senator Jeff Sessions stated, "Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election." And he was not alone in his remarks. Further, there appears to be scant support for calling this "myth" a "rule," since there is no written rule in the Senate or the Senate Judiciary Committee, nor has there been an agreement between the parties, on this issue. What's more, recent studies have concluded that although confirmations have slowed in election years, confirmations, especially of district court nominees, have continued past July of an election year. But since Minority Leader McConnell made his proclamation a month ago, the Senate has confirmed no more court of appeals nominees, and has only confirmed three district court nominees – and no more than one judge per week.

But as commentators around the country have noted, Senator McConnell's invocation of the "Thurmond Rule" and the coincidental-or-not further slowdown in confirmations is particularly inappropriate given the high level of judicial vacancies. Right now, there are 76 vacancies on the lower federal courts. In comparison, in August 2004, which was the last year of President Bush's first term in office, there were 28 vacancies.

This is no time to shut down the confirmation process. Rather, it's time to speed it up.

Confirming two or six or 18 nominees at a time certainly made it easier to keep vacancies to a minimum back in 2004. And it is high time the Senate did so again. People around the country are waiting for judicial vacancies to be filled so that justice can be served. Contact your Senators and urge them to make sure the Senate does 100% of its work before leaving for its August break.