Keep Them Coming — Confirm All Pending Judges

With the midterm elections behind us, it is time for Congress to refocus on the people’s work.  It won’t be easy, but congressmen should reject the cynical voices preaching “nothing can be done now, so we should prepare for next year.”

In the Senate, the priority should be the confirmation of all pending judicial nominees.

President Donald Trump has done an excellent job nominating constitutional judges. Helped in no small part by Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Kentucky), the president has confirmed 29 appellate court judges, 53 to the district court and, of course, two Supreme Court Justices. His appellate appointments set a new record for the first two years of a president’s first term.

The Senate has done good work, but this is not the time to let up. The overall number of appointments for President Trump is not a record by any stretch. His 84 confirmations compare to President George W. Bush’s 80 and President Bill Clinton’s 128. In fact, as noted by the Heritage Foundation, there are more judicial vacancies awaiting at this point of President Trump’s term than for the last five presidents — all the way back to President Reagan. There are 122 vacancies.

The Senate has currently 13 appellate nominations pending. Just this week the president announced Neomi Rao to fill the seat left vacant by Justice Kavanaugh at the D.C. Circuit Court of Appeals, often called the second most powerful court of the land. He couldn’t have picked a more exciting choice. In her work at the Office of Information and Regulatory Affairs, Rao has worked on the deregulation efforts that have unleashed the successful economy we are witnessing. She is an intellectual powerhouse in the area of Administrative Law which constitutes a great part of the work handled by the D.C. Circuit. As associate professor of law at George Mason University’s Antonin Scalia Law School, she founded the school’s Center for the Study of the Administrative State.

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The Senate should not go home without addressing this crucial nomination. Frankly, it is not unreasonable to ask the Senate to remain in session until all pending nominees are confirmed.

It is not only a simple shift in the calendar to wait on these nominees. The fact is that every day that they remain on the calendar means another wasted opportunity to address all 122 judicial vacancies. As of today, 63 of those vacancies are considered a judicial emergency by the Judicial Conference. This is a big problem in the abstract, just on numbers alone.

But when we consider the state of our judiciary, the pressing nature of the confirmation of judges should be plainly seen. Consider that President Barack Obama, who specifically looked for judges who looked beyond the law to empathize with certain classes of people, appointed a total of 329 judges, including four judges to the D.C. Circuit, where Rao is to be confirmed.

When President Obama left office, nine of the nation’s 13 appellate courts had a majority of judges appointed by Democrat presidents, compared to just one (one!) when he took office. President Obama, not President Trump, transformed the judiciary.

What President Trump has been doing up until now is undoing some of that. However, as should be evident, there is much more to be done.

This is not the time for the Senate to get complacent in the opportunity they have been given. Constitutional judges who respect the Constitution and laws as written, who believe in judicial restraint and the proper role of judges as impartial arbiters and not super legislators, should be the Senate’s number one priority on these last days of 2018. Sen. McConnell should do everything in his power to stress the importance of this matter to all members of the caucus, and they should stay in session until every nominee pending is confirmed.