Why McConnell Canceled August Recess – By John McCormack (weeklystandard.com) / June 5 2018
Time is running out to confirm top federal judges in 2018.
With five months left until the 2018 elections, Congress’s legislative agenda is sure to produce, well, a whole lot of nothing. The reasons for legislative gridlock are simple. The Senate is divided 51-49 (effectively 50-49 with John McCain in Arizona undergoing cancer treatment), the 60-vote hurdle for most legislation remains intact, and there is little interest in bipartisan dealmaking. The recently-passed bill reforming the Dodd-Frank banking law, on which some Democrats and Republicans were willing to compromise, is probably a high-water mark for 2018.
When it comes to the budget reconciliation process—the Senate’s special procedure to bypass the filibuster with a simple majority—Republicans likely enacted most of what they could get on a party-line vote in December 2017 when they passed tax reform, scrapped Obamacare’s individual mandate, and opened up energy exploration in the Arctic National Wildlife Refuge. On May 20, White House budget director and former congressman Mick Mulvaney was asked at a Weekly Standard conference what the odds are of major legislation passing Congress before the midterm elections. “Zero,” he replied, adding later that something “might” pass on immigration.
With the prospect of legislative victories dim, Senate Republicans would appear to have plenty of time to focus on confirming federal judges. It’s a priority of both conservatives and the GOP establishment and about the only way congressional Republicans can achieve something tangible. Since the inauguration of President Trump, the Senate has confirmed a record 21 judges to the powerful federal appeals courts—more than double the number of appellate judges confirmed under the previous three presidents during their first 16 months in office.
“It’s quite consequential,” says Leonard Leo of the Federalist Society. “These are relatively young appointees and individuals who have very demonstrated records of being committed to a more conservative, originalist jurisprudence.” The Trump-appointed judges haven’t yet swung any particular court of appeals from a minority of Republican appointees to a majority, notes Ed Whelan of the Ethics and Public Policy Center, but their effect on jurisprudence will be felt for years to come. For that success, a great deal of credit goes to former Democratic Senate majority leader Harry Reid, who abolished the 60-vote requirement for executive branch nominees and federal judges in 2013. (Republicans finished what Reid set in motion for the Supreme Court when they confirmed Neil Gorsuch with a simple majority in 2017.)
But Senate rules still allow the minority party to stymie the majority party and the executive branch, and Democrats have taken full advantage. They have chewed up the clock by dragging out votes on appointees—an assistant secretary for mine safety at the Labor Department, for example—who would have sailed through under previous administrations. “It’s taking an average of 85 days for a Trump nominee to clear the Senate, compared with 67 days for former President Obama and 44 days for former President George W. Bush,” the Hill’s Jordain Carney reported on May 22.
Republicans have pushed to reduce the amount of debate time allowed on some nominees, but Democrats are unlikely to go along with that plan. After all, the first duty of the Democratic resistance is to resist. Majority Leader Mitch McConnell responded to Democratic obstruction in May by signaling the Senate will likely cut the August recess short or cancel it, an unusual move, especially in an election year when incumbents want to be home campaigning. But Democrats this year have more to lose than Republicans by being stuck in Washington: While several Democratic incumbents are in tight races, just one Republican senator (Nevada’s Dean Heller) is in a toss-up. The two other vulnerable GOP Senate seats (Arizona and Tennessee) are held by retiring senators.
The upshot of the fight over Senate floor time for judicial confirmations is that there will likely be just enough time to fill most or all of the existing appeals court vacancies by the end of 2018, but dozens of (less powerful) vacant district court seats will remain unfilled. Those latter vacancies are, of course, still a problem. “The district court vacancies are in crisis,” says Tom Jipping, a legal expert who recently left the Senate Judiciary Committee staff for a job at the Heritage Foundation. “Courts can’t handle cases if they don’t have judges.”
But courts of appeal set legal precedents, and Republicans have understandably focused on them. They’ve curtailed what’s known as the “blue slip” privilege, which had effectively given senators veto power over judicial nominees from their home states, in favor of a policy of extensive consultation with home-state senators. There are still seven vacant appeals court seats (mostly from Democratic districts) with no nominee named yet. “Anybody who gets nominated by sometime in mid-June has a real good shot at getting confirmed,” says Leo. “If you get nominated after that, I think the odds diminish in terms of being confirmed by the end of the year.”
Trump has been widely praised by conservatives, including his critics, for the appointments of Neil Gorsuch and other federal judges. But shakeups in his administration do hurt the judicial-confirmation effort. Time spent confirming a new secretary of state and CIA director this month is time that could have been spent confirming judges.
While Republican legal efforts are focused on appeals court vacancies right now, that effort will seem relatively inconsequential should Supreme Court justice Anthony Kennedy announce his retirement at the end of the court’s term, likely the week before July 4. Speculation about a possible retirement by Kennedy, who turns 82 in July, remains just that—speculation. Even when a justice has a clear preference on the type of successor he or she would want, that doesn’t always guide retirement decisions. In 2014, liberal ideologue Ruth Bader Ginsburg, who was 81 at the time, passed up the opportunity to have her successor named by President Obama and confirmed by a Democratic Senate. With Kennedy, it’s unlikely there exists a judge who shares his idiosyncratic judicial views. Since he was appointed by Ronald Reagan and took his seat in 1988, Kennedy has pleased judicial conservatives with his votes in cases involving gun rights, religious liberty, and Obamacare’s individual mandate, but he also cast the deciding vote upholding Roe v. Wade and declaring a constitutional right to same-sex marriage. It’s anyone’s guess whether Kennedy would prefer his successor to be a Republican or Democratic appointee, and whether he thinks his 30 years on the Supreme Court have been enough.