The Republican Senate leader and regular order

Ever since Republicans captured the U.S. Senate in November 2014, the party’s leadership has pledged that the GOP would restore the upper chamber to “regular order.” This term ostensibly describes the normal system which governed Senate operations before the Democratic majority undermined that regime. Indeed, Senator Mitch McConnell of Kentucky, the Majority Leader, has incessantly trumpeted how Republicans are returning the Senate to regular order. In one critical area of American governance – nominating and confirming federal judges – the Republican majority has not brought regular order to the Senate. It is past time for the GOP-led Senate to discharge its constitutional responsibility for granting advice and consent on President Barack Obama’s judicial nominees.

As soon as Republicans won a Senate majority, the leaders pledged they would institute regular order in the chamber again. On the first business day of the 114th Senate in early January 2015, Senator McConnell promised to return regular order in the Senate. That month, Senate Judiciary Committee Chair Charles Grassley also vowed that the panel would follow regular order when processing judicial nominees. Despite these pledges from leadership, regular order has not characterized the judicial appointments process.

{mosads}Despite assiduous efforts by President Obama in consulting with all home-state senators to seek recommendations of well qualified, mainstream nominees, many GOP senators have not cooperated to propose names. Moreover, the Judiciary Committee has slowly arranged hearings and votes on nominees. The panel has “held over” for one week without explanation nearly all nominees. However, the major bottleneck has been the floor. McConnell has drastically slowed the pace of final debates, if needed, and chamber votes. Indeed, the Senate has confirmed merely twenty nominees, averaging one per month since Republicans assumed the majority. This sharply contrasts with the 68 judges whom the Democratic Senate majority helped confirm in President George W. Bush’s last two years.

The number of vacancies has doubled from forty to eighty, while the number of emergencies has soared from twelve to as high as 34 and is now 29. There are currently two circuit nominees and eighteen district nominees awaiting up or down votes. The Judiciary Committee approved all of the district nominees without dissent, and GOP home state senators recommended eleven of the eighteen nominees.

Stalled nominee processing has many detrimental effects. Delayed scrutiny forces many highly qualified, consensus nominees to place their careers on hold, while it dissuades excellent candidates from envisioning judicial service. Protracted review undermines the courts’ ability to deliver justice, especially for people and businesses litigating in federal court, and decreases citizen respect for the appointments process and the branches of government.

The GOP can easily restore regular order to the judicial confirmation process by actually following regular order. Before Obama became President, the Senate practice was to confirm all qualified, consensus nominees who were on the floor before lengthy recesses like the one that begins this week and ends after Labor Day. The Republican leaders can begin to remedy the vacancy crisis and restore regular order by granting all nominees on the floor yes or no votes before departing for the summer recess.


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

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