Senate Majority Leader Mitch McConnell (R-KY) (L) and Supreme Court nominee Judge Brett Kavanaugh in McConnell's office in the U.S. Capitol in Washington on July 10, 2018. Kavanaugh’s confirmation hearings are scheduled to begin on Sept. 4. (Chip Somodevilla/Getty Images)

Democrats Wilt in August Heat, Agree to 15 Judicial Appointments

News Analysis

WASHINGTON—In a decision that has outraged Democratic activists and delighted Republicans, Senate Minority Leader Chuck Schumer (D-N.Y.) has agreed to the confirmation of 15 District Court judges.

Schumer’s hand was likely forced by the combination of an unforgiving electoral slate in November and a decision made by former Senate Majority Leader Harry Reid (D-Nev.) in 2013.

Seven district court judges received fast-track approvals on Aug. 28, and eight more are scheduled to be confirmed the week of Sept. 3.

Until this latest batch of confirmations, the Democrats had used procedural maneuvers to slow confirmation of President Donald Trump’s nominees—both for the judiciary and for the administration. Senate rules allow for 30 hours of debate for each nominee, and the Democrats have typically insisted on using every hour and requiring a cloture vote to end debate.

Majority Leader Mitch McConnell (R-Ky.), in a press release, complained about the “historic level of obstruction” that “Senate Democrats have systematically visited upon this administration’s nominees, even for critical positions.”

“President Trump’s nominees have already been subjected to more than four times as many cloture votes as the nominees of his six most recent predecessors combined in their first two years,” McConnell wrote. “Twenty-four cloture votes on nominations in the first two years of Presidents Carter, Reagan, Bush, Clinton, Bush, and Obama all put together. And for President Trump? One hundred and ten—and counting.”

The Democrats have adopted this method of obstruction because in 2013, then-Majority Leader Reid, frustrated by Republican obstruction of President Barack Obama’s judicial nominees, changed the Senate rules.

Employing what was called the “nuclear option,” Reid reduced the number of votes needed to approve a presidential appointment from 60 to a simple majority, which means Republicans currently have the votes needed to approve any nominee, so long as they stick together. Republicans hold a 50–49 advantage in the chamber, following the death of John McCain (R-Ariz.)

Even without the ability through a filibuster to block a nominee, though, the Democrats could slow them down.

Brian Fallon, a former Schumer spokesman and now executive director of the progressive judicial activist group Demand Justice, blames the decision to fast-track this tranche of nominees on Senate Democrats “trading this many lifetime positions away for a couple days back home in the dead of August,” as reported by Huffington Post.

McConnell has put pressure on the Democrats by keeping the Senate, which usually takes all of August off, in session. After the deal was reached to confirm the circuit court judges, McConnell adjourned the Senate from Aug. 29 through Sept. 4.

Meanwhile, Schumer is looking at Democrats defending 26 of the 35 Senate seats that are up for election. With 10 of those seats in states Trump carried, a few extra days available to campaign may look pretty valuable to Schumer and his colleagues, whose jobs are on the line.

With only a majority needed for approval, McConnell has pushed through judicial nominees at a record pace. So far, 33 circuit court nominees have been confirmed, more than any other president at this point in his term, according to Bloomberg.

Overall, Trump has gotten 60 federal judges confirmed, including 26 appeals judges and Supreme Court Justice Neil Gorsuch.

Fallon complained that “An entire branch of government is being lost for generations, and Senate Democrats are willfully blind to it.”

Most of the judges appointed by Trump are in their 40s or 50s. With lifetime appointments, they will serve for decades.

Since Robert Bork’s failed appointment to the Supreme Court in 1987, nominations to the federal judiciary have been the subject of bitter partisan fights that reflect a fundamental disagreement between conservatives and liberals or progressives.

Trump, guided by White House counsel Don McGahn and a conservative legal group called the Federalist Society, has chosen originalists—judges who believe in sticking to the text of the law and the Constitution and the intentions of its framers. Democrats tend to subscribe to the idea of a living Constitution, in which judges interpret the law more freely, in line with what they believe are the prevailing standards of the time or the judge’s view of what is right.

Conservatives complain that liberal judges dress up their personal and policy preferences in newly discovered rights and in doing so threaten the foundation of an orderly and free republic; liberals complain that conservatives cloth their prejudices in reverence for ideas that, while once revolutionary, are now over 200 years old.