Supreme Court nominee Merrick Garland may be the most prominent casualty of the GOP-controlled Senate’s election-year resistance on the federal judiciary — but the pace of overall judicial confirmations under Mitch McConnell is on track to become the slowest in more than 60 years.

Under the McConnell-led Senate, just 20 district and circuit court judges have been confirmed at a time when the vacancies are hampering the federal bench nationwide, according to the Congressional Research Service. During George W. Bush’s final two years in the White House, Senate Democrats in the majority shepherded through 68 federal judges — a courtesy that Democrats now complain Republicans aren’t affording to President Barack Obama, even though Obama has had more judges confirmed overall.


And the window for confirming more judges is narrowing, with the election-year cutoff of confirmations for lifetime appointments — a standard Senate practice — looming on the horizon. South Dakota Sen. John Thune, the third-ranking Senate Republican, said leaders haven’t discussed in depth when the chamber will stop confirming judges but signaled the slowdown is already in place.

“There’s sort of an unwritten rule that’s been in place for some time,” Thune said, referring to the so-called Thurmond rule, an informal guideline to stop confirming judges in the summer of an election year. “I think that’s probably — at least on some level — being adhered to.”

Still, some senior Republicans suggested there is a chance that more judges could be installed by the Senate in the 114th Congress, if only for the most parochial of reasons.

A swath of GOP senators — from members of leadership to vulnerable in-cycle Republicans — still have their own judicial nominees they want confirmed so they can tout the achievement to voters back home. Senators, regardless of party, typically work with the administration to choose consensus nominees for the bench, and it’s rare that a lower-level judge becomes a controversial lightning rod.

For instance, Senate Majority Whip John Cornyn is facing multiple judicial vacancies in his home state of Texas. Sen. Pat Toomey of Pennsylvania, who is locked in one of the most competitive Senate races nationwide, said he is pushing his own leadership to act on the two district court judges from his state currently idling on the Senate floor for a vote. Sen. Orrin Hatch of Utah, the most senior Republican in the chamber, has his own judicial nominee he wants cleared soon.

Perhaps that explains why top Senate Republicans will not outright rule out the prospect of confirming more judges later this year, although the chances of doing so appear slimmer by the day.

“Certainly on district court judges, that’s something that a number of people would like to — on our side — would like to see progress,” Cornyn said when asked whether the Senate is preparing to stop confirming judges this year. The second-ranking Senate Republican is dealing with 10 federal vacancies in Texas.

Democrats, who have been stewing for months over the Senate GOP’s blockade of Garland, are getting even more steamed over what they see as Republican mistreatment of Obama’s efforts to shape the federal judiciary as the chamber heads into the election-year confirmation lull.

“Clearly this was designed to give a Republican president the power to fill the vacancy, whether it’s the Supreme Court or lower courts,” said Illinois Sen. Dick Durbin, the No. 2 Senate Democrat. “And if the American people don’t choose a Republican president for the next year, McConnell will have to ask himself: Is it better to take these nominees? Or others will come that might be objectionable.”

The Senate war over the federal judiciary has been a simmering undercurrent to the high-profile fight over Garland, whose dead-in-the-water confirmation remains adrift since McConnell announced in February that this Senate would not be filling the seat of Justice Antonin Scalia, who died in February.

After a months-long pressure campaign, Democrats are acknowledging Garland is not getting a hearing, at least for now. Now, they are increasingly pointing to statistics to make their case that McConnell is steering an unprecedented blockade of lower-level federal judges.

In 2015, the Republican Senate majority ushered through confirmations for 11 circuit and district court judges. So far in 2016, nine have been confirmed. That’s 20 confirmed this Congress — the lowest number since the 82nd Congress in 1951-52, which confirmed just 18 judges, according to the Congressional Research Service. Harry S. Truman was president at the time. The CRS retains data on judicial confirmations dating to 1945.

In response, Republicans toss figures favorable to Obama right back at Democrats. So far in his presidency, Obama has had 329 of his judicial nominees confirmed, compared with 312 for Bush at the same point in his final year in the White House, according to the Senate Judiciary Committee. In addition to Supreme Court nominees and circuit and district court judges, the figure also includes judges for the U.S. Court of International Trade.

“It’s always tough to hear lectures from the senators who pioneered the judicial filibuster,” McConnell spokesman Don Stewart said of Senate Democrats. “Or from the first president in history to have filibustered judicial nominees.”

Cornyn added in a quip: “Their memory fades, I think, once they get into the minority.”

Democrats argue the GOP numbers aren’t quite fair because the number of empty seats is much higher now. As of Wednesday, there were 89 vacancies in the federal judiciary — although the Obama administration has yet to nominate a replacement for 32 of them. In contrast, judicial vacancies in a similar time period under Bush were about 40.

After a protracted scuffle over confirming Luis Restrepo to the 3rd U.S. Circuit Court of Appeals, Toomey is back in another push over judicial nominees, lobbying for swift confirmation of Susan Baxter and Marilyn Horan to the Western District of Pennsylvania. That could be another accomplishment Toomey could use to burnish the bipartisan image he’s tried to project in his competitive reelection battle against Democratic challenger Katie McGinty.

McGinty has invoked the Restrepo contretemps as well as Toomey’s opposition to hearings for Garland in her campaign. Back in Washington, Toomey is using parliamentary tactics to try and tee up confirmation votes for Baxter and Horan, whose nominations have lingered on the Senate floor since January.

“I went down and asked unanimous consent to bring them up because the vacancies have been the longest,” the Pennsylvania Republican said. “I’ve been consistently pushing for this. I’m pushing the committee; I’m glad that they were reported out of committee successfully. One’s a Democrat, the other’s a Republican, so I’m hoping that we’ll be able to get that done.”

Hatch, himself a former chairman of the Judiciary Committee, has his own pick in mind: Ron Russell, a shareholder at a Salt Lake City law firm who was nominated by Obama for the District of Utah in December. Russell is also strongly backed by fellow Utah Republican Sen. Mike Lee.

“We’d sure like to have that happen because he’s a very fine man and bipartisan,” Hatch said of Russell. “I think the district court judges have a better chance of coming forward. We’ll see what we can do.”

The senior Utah senator said he is bending McConnell’s ear, trying to secure a confirmation vote for Russell. But McConnell has been noncommittal to Hatch, simply responding: “We’ll see,” according to the senator’s retelling.

The Senate Judiciary Committee is making one final push on judicial nominations before the seven-week recess. The panel held a nominations hearing Wednesday for two judicial prospects and plans to vote out four others during a committee meeting on Thursday.

The powerful committee’s chairman, Sen. Chuck Grassley (R-Iowa), said at Wednesday’s hearing that he has held hearings for 49 judicial nominees this Congress, while at the same point in Bush’s final two years, the Democratic-led Judiciary panel had done the same for 47 picks.

Grassley has made it clear he believes generally the Senate will stop confirming lifetime judges when the Senate recesses after this week, if only to abide by precedent. But he stressed there will be exceptions. For example, a Judiciary Committee member may want a hearing for a home-state judicial nominee well after the Thurmond rule kicks in.

Sen. Chuck Grassley: "I believe that there's always exceptions to the Thurmond-Leahy rule." | AP Photo

“I believe that there’s always exceptions to the Thurmond-Leahy rule, and I would entertain those exceptions that have been in the past,” Grassley said, who added no decisions will be made before September.

Republicans often invoke the name of Sen. Patrick Leahy (D-Vt.) when talking about the Thurmond rule, particularly because the top Democrat on the Judiciary Committee has referred to that rule more often than any other senator except former Sen. Strom Thurmond (R-S.C.) himself, according to an August 2008 report from the CRS.

But now, Leahy emphasizes that he got 10 Bush nominees confirmed in September 2008 when he was the chairman, well after the Thurmond rule would have kicked in. Republicans would do well to follow suit in Obama’s final months in the White House, the Vermont senator says.

“There is no rule and all they have to do is follow precedent,” Leahy said of the current Republican majority. “Both with [President Ronald] Reagan when Democrats took over and with Bush when Democrats took over. We kept right way into the fall with judges.”

The process of confirming a judge can be lengthy and complicated, even without the turmoil of election-year politics. Sen. Deb Fischer (R-Neb.) had been working with former Sen. Mike Johanns (R-Neb.) to fill a vacancy in the District of Nebraska that arose with an October 2014 retirement.

Since the retiring judge had given plenty of notice, Fischer and Johanns recommended Robert Rossiter in April 2014 after a lengthy process in which they reviewed 20 potential jurists, Fischer said. Obama formally nominated Rossiter in June 2015. The confirmation hearing came four months later in October, and finally, Rossiter was confirmed unanimously late last month.

“We wanted to make sure we’re going to get a good judge in there. I harassed the administration, to get them to nominate him. That took a year,” Fischer said. “Judiciary, it was October. It takes a long time.”

Burgess Everett contributed to this report.

