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Break the partisan gridlock on judicial nominations

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A proposal by Sen. James Lankford of Oklahoma to limit debate time for judicial nominees would help resolve a vacancy crisis that threatens the ability of federal courts to provide justice in a timely fashion.

The change, approved by the Senate Rules Committee last month, would break the gridlock on judicial nominations. President Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.) have worked quickly to nominate and confirm fair, qualified individuals to the federal judiciary, but 147 vacancies remain. Their efforts to fill those seats have been stymied by unprecedented obstructionism.

{mosads}The nominees selected by President Trump are hardly controversial. Far from being political ideologues, they are experienced lawyers and judges who can be trusted to uphold the Constitution and the rule of law. They include David Nye, who was previously nominated by President Barack Obama in 2016, and David Stras, whose nomination was endorsed by both conservative and liberal colleagues in Minnesota.

These are the kinds of nominations that some Democrats are doing their best to thwart or delay. Filibustering candidates is no longer an option, thanks to the short-sighted decision by Then-Senate Majority Leader Harry Reid (D-Nev.) to abolish the filibuster for most judicial nominees in 2013. Now, some senators are exploiting longstanding norms and procedural rules to try to slow down the very process they themselves tried to speed up.

One way they’ve done this is by weaponizing the so-called “blue slip” tradition that allows senators to weigh in on nominees from their states.

The purpose of the blue slip has always been to ensure that the president engages in good-faith consultations with a judicial nominee’s home state senators. It was never meant to allow individual senators to deny a committee hearing to circuit court nominees from their state, as some now claim. All of which prompted Judiciary Committee Chairman Chuck Grassley (R-Iowa) to clarify that the blue slip does not give senators such a veto power.

Another delaying tactic used by senators to slow the process is to force the majority to move to invoke “cloture,” which limits debate to 30 hours, and then to insist on using the full 30 hours of debate time for even noncontroversial candidates.  

Senators have used this tactic on 89 of President Trump’s nominees during his first 16 months in office. By contrast, there were just 32 cloture votes during the first terms of the last four presidents combined – a period of 16 years.

Thirty hours of debate time may be warranted for particularly contentious or important nominations – say, the appointment of a justice to the Supreme Court. But for the typical judicial nominee, it is simply a waste of the Senate’s time.

Enter Sen. Lankford, whose reform would reduce debate time for most executive branch nominees to eight hours and for district court nominees to two hours. Supreme Court, Circuit Court and Cabinet-level nominees would still receive 30 hours of debate time.

Senate Democrats, including Senate Minority Leader Chuck Schumer (D-N.Y.), have railed against the idea, which curtails their ability to bog down the nomination process. But in 2013, Schumer and the Democratic majority overwhelmingly supported the same changes proposed by Lankford. After negotiations with Republicans, a standing order was adopted with bipartisan support limiting post-cloture debate time during the 113th Congress (2013-14).

The change worked. During the 113th Congress, eligible nominees were confirmed, on average, less than a day after cloture was invoked. By contrast, most nominees in this Congress have been subject to a day or more of debate. Several have taken longer than a week to be confirmed.

Instituting Lankford’s reform would also ensure that Republicans wouldn’t be able to use the same tactic in the future to obstruct appointments by a Democratic president and Senate.

Lawmakers should not hesitate to enact the change. They might not have time to spare. Should the GOP lose control of the Senate in November, the resulting gridlock would likely slow the confirmation process to a halt. 

The Senate majority should prepare for that possibility by removing unnecessary roadblocks to judicial nominees and working quickly to fill the remaining vacancies.

Sarah Field is the vice president of judicial strategy of Americans for Prosperity.

Tags Barack Obama Chuck Grassley Chuck Schumer Donald Trump Harry Reid James Lankford Mitch McConnell

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