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Michael Swartz / Jan. 25, 2019

Another Nuclear Option to Clear Judicial Backlog?

Senate Democrats keep finding new ways to obstruct Trump's nominations.

If there’s one thing President Donald Trump has been dogged about — besides feeding his Twitter habit — it’s the pace he’s kept in sending judicial nominees to the Senate. For most of the first half of his term, he was getting approvals at a blistering pace. But as the 115th Congress closed, the petulant antics of lame-duck GOP Sen. Jeff Flake left the president with dozens of nominees who didn’t get through the process. As our Thomas Gallatin wrote late last year, “Hopefully, with Flake gone and a larger majority, Senate Republicans can make up lost ground and get Trump’s nominees confirmed at a rapid pace.”

To that end, President Trump has renominated a slate of 51 jurists — including one for Brett Kavanaugh’s old seat and another for a newly created judgeship in the U.S. Court of Military Commission Review — in his latest effort to put a dent in the 140 judicial vacancies currently without nominees. (Six vacancies in various district courts have nominees pending.) One would think that without Flake to gum up the works and an enhanced Senate majority of 53 Republican senators — a majority that makes moderates like Maine’s Susan Collins and Alaska’s Lisa Murkowski less of an obstacle in seating conservative jurists — that Trump’s nominees would sail through.

Unfortunately, minority Democrats have found a new stalling tactic as they try to run out the clock on Trump’s term. Hot Air’s Jazz Shaw points out, “The reason for this [delay is] the fact that Democrats are dragging their feet as much as possible and demanding a full 30 hours of allowable debate after cloture, even in cases where no serious objections have been raised and the candidate will clearly be confirmed anyway.” At 30 hours per nominee, confirmation is like pulling teeth.

Shaw further notes that when Republicans were in the minority during the Obama administration, they reached an informal agreement with Democrats to limit debate to eight hours. It’s doubtful Chuck Schumer intends to play nice like the GOP did, though.

In that same vein, Washington Examiner analyst Quin Hillyer suggests that those holdovers previously nominated be waived through the Senate committee process. According to Senate rules, the leadership can order that nominees bypass committee, writes Hillyer, and in this case it’s appropriate because the nominees were vetted by the previous Congress. This process wouldn’t be used for new nominees, but it could clear the backlog.

During the Obama administration, Democrats tried to paint Republicans as constituting a “do-nothing Congress.” Now that we have a Democrat-controlled House bent on investigating Donald Trump and a rump coalition of 47 Democrat senators who exist simply to be obstinate rather than do the people’s business, these suggestions have been placed in the hopper. Trump can now at least focus on the judicial branch — a task that’s always time well spent. But he’s going to need help from Senate Majority Leader Mitch McConnell.

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