The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts.

The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives.


Republicans appear willing to absorb criticism that they’re interfering with the prerogative of a president to pick his nominees in the hope that the GOP can get its own judges installed in 2017, with one of their own in the White House. In the meantime, federal courts could be left with dozens of unfilled vacancies. More than two dozen federal courts have declared “ judicial emergencies” because of excessive caseloads caused by vacancies.

Senate Democrats infuriated Republicans in November 2013 by scrapping the 60-vote filibuster rule for judicial nominations — a change Obama and then-Majority Leader Harry Reid (D-Nev.) used to usher through 96 judicial nominations.

That gush has slowed to a trickle since Sen. Mitch McConnell (R-Ky.) became majority leader in January: When the Senate returns after the Fourth of July recess, the chamber will vote to confirm its first circuit court nominee of the year, Kara Stoll.

Nominated to the U.S. Court of Appeals for the Federal Circuit, Stoll would become just the fifth judge confirmed to the federal bench so far this year, a pace that falls short of the previous modern low of 12 confirmations in 2009, the first year of Obama’s presidency, according to the Congressional Research Service. The 2009 figure is depressed because it takes months for a new president to start making nominations.

Republicans say there’s little reason to shift gears with a lame-duck president in office and hopes running high that they will win the White House.

“It’ll be a slow, steady pace,” said Senate Majority Whip John Cornyn (R-Texas).

Is it payback for Democrats invoking the so-called nuclear option two years ago to get their judges through? “We’re way too busy to think about things like retribution,” Cornyn replied.

The ramifications for the federal courts could be far-reaching. Obama’s focus on executive action in his final two years is likely only to increase the importance of lower-level courts as he tries to enact progressive labor, economic and immigration policies via executive order. His sweeping executive actions on immigration are currently on hold after a district court ruling in February, a major blow that came from a judge appointed by former President George W. Bush.

Democrats believe the GOP is creating an unprecedented expansion of the Thurmond Rule, which holds that the Senate shuts off the confirmation valve of lifetime judicial appointments in July of an election year.

“They have now obviously extended it to two years before the election,” Senate Minority Whip Dick Durbin (D-Ill.) said of the rule.

Senior Republicans insist the GOP is moving along key nominations at a rate comparable with the final two years of previous lame-duck presidents and that large packages of nominations are often confirmed after long dry periods. The Senate just confirmed eight ambassadors in May and June after no movement for months, and the expected confirmation of Stoll — who would be the first minority woman to serve on the Federal Circuit — would be one of the most high-profile judicial wins for Obama during the final 18 months of his presidency.

That’s small solace for Democrats, who are seething over the confirmation slog.

“It’s ridiculous,” said Vermont Sen. Patrick Leahy, who chaired the Judiciary Committee when Democrats held the majority. “They’re trying to politicize the courts. And it’s irresponsible. I refused to do that with President Reagan. I refused to do that with President [George W.] Bush.”

While Leahy insisted that under a GOP president and Democratic Senate he “moved judges through like it’s going out of style,” his history underscores senators’ shifting positions depending on who is in power. He told Republicans to ignore the Thurmond Rule during the end of Bill Clinton’s presidency, then warned Bush of the impending Thurmond Rule cutoff in 2008.

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared with 276 for Bush at the same point in his presidency.

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

“We’re trying to move them at about the same speed as the Democrats did when they took over the Senate the last two years of the Bush administration,” said Judiciary Chairman Chuck Grassley (R-Iowa). He said the Thurmond Rule “won’t be in effect until next summer.”

The Democratic majority confirmed 68 district and circuit court nominees during Bush’s final two years, a mark that won’t be matched during this president’s final two years unless McConnell, Grassley and even Obama reprioritize the federal bench. And even that comparably torrid pace in 2007 and 2008 lags behind the confirmation rates of the final two years in office of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton.

The White House called on the Senate to speed up the process, noting that the four district court nominees approved this year waited seven to eight months to be confirmed.

“Today, there are seven judicial nominees pending on the Senate floor — all noncontroversial. Six were nominated last year, and three would fill judicial emergencies,” White House spokesman Eric Schultz said. “We urge the Senate to promptly consider and confirm these nominations.”

Senior lawmakers say the process has become so partisan that it may be driving away qualified nominees. They warn that the private sector may offer a more promising path to legal stardom than a federal judgeship, which can turn nominees into political pawns and leave them with little income as they await action on the Senate floor.

“Really, we’ve got to stop it. Both sides,” said Sen. Dianne Feinstein (D-Calif.). “The problem is it all depends on who’s in power. And then they take advantage, so what goes around comes around. And it’s got to end.”

There are 63 vacant slots in the federal judiciary, and Obama has yet to nominate a replacement for 47 of them. Half of the vacancies hail from states that are represented by two Republican senators.

Traditionally, the administration works with home-state senators to select nominees who can win confirmation easily. Last year, for example, Georgia’s Republican senators and the White House agreed on a package of nominees that sailed through the Senate save for one blocked by Democrats for his socially conservative views.

But Republicans say that’s the exception: Sen. Jeff Sessions (R-Ala.) charged that the president’s legal team seems to have little interest in working with him and Sen. Richard Shelby on filling their state’s three vacancies.

“We tried to work with the White House, and it still may happen, but they walked away from the agreements,” Sessions said in an interview. “Seems like the White House counsel may not be as alert on this as they need to be.”

The Judiciary Committee will take up three more judicial nominations when the Senate returns Tuesday. One is Luis Felipe Restrepo, who was chosen to fill a vacancy on the 3rd Circuit Court of Appeals in Philadelphia. Liberal groups have accused Sen. Pat Toomey (R-Pa.) of delaying that nomination for months, but Toomey disputed in an interview that he is responsible for holding up Restrepo since Obama nominated him in November.

“I’m in favor of confirming him. So I hope we’ll get that moved, and I’m pretty confident I will,” said Toomey, who faces a tough reelection next year. “People will look for ways to make accusations because I’m in cycle. I expect it.”

Indeed, home-state politics can trump the broader war over the courts. The other two judicial nominees set for committee consideration are Travis Randall McDonough and Waverly D. Crenshaw Jr., both chosen to serve as district court judges in Tennessee and praised by their senators, Republicans Bob Corker and Lamar Alexander. And Cornyn is happy to note three of the four judges confirmed this year are from Texas.

That Republicans overall seem to have little interest in moving nominations on the Senate floor other than those from their home states this year is not lost on Democrats.

Judicial nominations “are probably the least time-consuming of the consequential actions that we take,” said Sen. Richard Blumenthal (D-Conn.). “And when they reach the floor, ironically, as you know, the votes are usually overwhelming. It’s just simple delay.”