The Republican Senate and rushed judicial confirmations

Ever since Republicans recaptured the United States Senate in November 2014, the Grand Old Party leadership and individual Republican members have been promising the American people that they will return the Senate to “regular order.” Republicans have not clearly defined exactly what regular order is, but they seem to mean restoration of the procedures that governed the Senate before Democrats supposedly abolished or undermined those practices. Unfortunately, Republican leaders have implemented actions that directly conflict with any proper understanding of regular order

For example, on the first day of the 113th Senate in early January 2015, Senate Majority Leader Mitch McConnell (R-Ky.), pledged that Republicans would return the upper chamber to regular order. Several weeks later, Sen. Charles Grassley (R-Iowa), the Senate Judiciary Committee chairman, concomitantly vowed that the panel would employ regular order to provide judicial nominees hearings, discussions and panel approval votes. Despite Republicans’ incessant repetition of the regular order mantra throughout that Congress, the GOP majority allowed merely 22 nominees selected by President Barack Obama to be confirmed across 2015-16. This number comprised the fewest district judges appointed since the administration of President Harry Truman and the least circuit jurists since 1897-98 when the circuit system had 25, rather than the current 179, judges.

{mosads}On Thursday, April 26, as senators were departing for a work week in their home states, McConnell announced that he would file cloture and seek confirmation debates and votes on six circuit nominees when the Senate returns the week of May 7. This comparatively late notice and stacking of so many nominees for these life-tenured critical judicial positions in which nominees, if confirmed, will resolve life and death issues means that senators, especially in the Democratic minority, may lack sufficient time and resources to prepare for, and engage in, rigorous debate regarding all six nominees’ qualifications. Stacking so many nominees in such a brief compass strikingly contrasts with the last two administrations. During President George W. Bush’s tenure, the Senate never debated and voted on more than three circuit nominees in one week and did so merely twice. Throughout, Obama’s eight years, the chamber only considered more than three circuit nominees in a week once and that was a special circumstance whereby Republicans had delayed many appellate nominees for months and the Senate was adjourning at 2010’s conclusion.

Notwithstanding Grassley’s promises to follow regular order, the chair has contravened it. Regular order formerly permitted one hearing each month that Congress was in session at which one circuit, and three or four district nominees would appear. Across 2017, Grassley convened hearings every two weeks for similar numbers of nominees. However, the chair also scheduled five hearings in which two circuit nominees, and frequently four district nominees, testified without permission of the Democratic minority. This strikingly contrasts to the eight years in the Obama administration when there were merely three hearings in which two circuit nominees appeared and then with Republican permission. Grassley similarly modified the “blue slip” policy which Sen. Patrick Leahy (D-Vt.) deployed as chair in Obama’s first six years and Grassley respected in the last two. Each chair only allowed a hearing when both home state senators delivered slips, which granted their permission for the nominee’s hearing to be scheduled. In November and this year, Grassley changed this practice for circuit nominees when he determined that the White House had “adequately consulted” home state senators or those members had retained blue slips for “political or ideological reasons.”

Next week, when the Senate returns and rapidly confirms six nominees for lifetime posts on courts one level below the Supreme Court, Republican senators should remember and honor their pledge to restore regular order and the American people should take note of how the GOP is ignoring regular order to rubberstamp President Donald Trump’s nominees for those critical judicial positions. 

Carl Tobias is the Williams Chair in Law at the University of Richmond.