One of the pillars of the 2016 election was President Donald Trump’s ability to retake the judiciary. Trump’s victory meant a conservative in the Supreme Court, but the judiciary extends way past just the highest court. Trump entered office with the opportunity to fill nearly 120 court vacancies to fill. Now the number has risen to 148, as the Senate is slow to confirm nominees and fulfill the 2016 election promise.
Currently, the U.S. Justice system is weakened by 21 vacancies in the U.S. Court of Appeals, 119 vacancies in the U.S. District Courts, 2 vacancies in the U.S. Court of International Trade, and 3 vacancies in the U.S. Court of Federal Claims.
To fill this burden, Trump has nominated 47 judges to fill various positions. The President’s most recent round of nominees came on Sept. 28, marking the eighth round he has submitted to the Senate. This wave made notable advancements regarding judge vacancies in the South, filling four spaces in the Fifth Circuit Appeals court which covers Texas, Louisiana and Mississippi.
These nominees came at the same time the Senate announced the confirmation of Judge Ralph Erikson to the U.S. Court of Appeals for the Eighth Circuit. The problem? Judge Erikson was only the seventh confirmation the Senate has made.
With 148 vacancies in the courts and 47 nominated judges, the Senate has confirmed seven in the last nine months.
The inaction is stunning.
Senate Majority Leader Mitch McConnell (R-Ky.) has been quick to blame Senate Democrats for obstructing the Trump judicial agenda. In an interview with the New York Times he noted, “My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.”
The blue slip policy refers to individual’s senators power to block nominees to the courts from that senator’s home state. This gives the minority party leverage over the president’s nominations, and Democrats have used it extensively.
Americans for Limited Government President Rick Manning explains, “‘The Senate’s snail pace on judicial confirmations denies the American people the rebalancing of the federal judiciary that they demanded in the 2016 elections. It unconscionable that there have only been seven confirmations in the first nine months of the Trump presidency when the GOP supposedly controls the Senate. The blatant over the top Democrat obstruction of the President’s judicial nominees, justify Majority Leader McConnell in taking whatever action is necessary, including eliminating the blue slip process to get the confirmation process moving.”
Considering since 1952, U.S. presidents have nominated and had confirmed an average of 163 federal judges, including 1.6 Supreme Court Justices, every 4 years, if Congress wants to keep Trump on pace with other U.S. Presidents — on average about 40 a year — they would need to confirm all of Trump’s current nominees this year. With only a few months left in the year, McConnell must act to make a critical change. Trump’s nomination speed is on par, this Senate is not.
While conservatives should be heralding the inclusion of conservative judges such as Supreme Court Justice Neil Gorsuch onto the bench, they must remain skeptical of obstructionist policies in the Senate which are halting further action. The slow Senate must act quickly to balance the judiciary and fulfil at least one of their election promises.