A necessary turning point on judicial confirmations


By Orrin G. Hatch - CQ-Roll Call



There are few duties of the United States Senate as solemn, and as consequential, as the consideration and confirmation of judicial nominees. Attention in the media is often focused on the Supreme Court, and for good reason, given how powerful the Supreme Court remains.

But also critical are federal circuit court judges, as they will provide the last word on the thousands of important cases (nearly 99 percent of all appealed) which never make it to the highest court.

At times of great controversy, at times of political upheaval or uncertainty, our courts stand as the final bulwark, defending individual liberty and assuring that government remains constrained by the limits imposed by the Constitution. And because Article III judges serve for life, their impact will persist far beyond the tenure of any one administration or any one session of Congress.

Last week, my colleagues and I undertook a historic effort to confirm judicial nominations submitted to us by President Donald Trump. In 2016, Republicans made a promise to the American people: If elected, we would move expeditiously to confirm qualified judges, committed to the rule of law and determined to right the course of judicial activism all too prevalent over the last eight years. With the confirmation of four highly qualified circuit court nominees, we continued in the work to fulfill that promise.

That effort has been undertaken, however, against constant and unflinching opposition from Democrats in the Senate. In every way conceivable, they have made the work of confirming judges more difficult. As everyone recognizes, the Constitution gives the power to nominate and appoint judges to the president, and it gives the power to confirm to the Senate. Rather than working with us, the Democrats in the Senate have proven consistent obstructionists.

First, obstruction has been offered in the form of what’s called the blue slip. Traditionally, the blue slip process has been used to assure consultation between the White House and home state senators of judicial nominees. Democrats and their grass-roots and media allies, however, are demanding that the blue slip process be used as a single-senator veto. They insist that a single home-state senator be able, at any time and for any reason, to stop a nomination dead in its tracks without any Judiciary Committee consideration at all.

I can understand why they want to weaponize the blue slip like this. After all, they once used the filibuster to prevent confirmation of Republican judges, but then abolished nomination filibusters so that no one else could use it. Democrats are today trying to turn the blue slip into a de facto filibuster. They want a single senator to be able to do in the Judiciary Committee what it once took 41 senators to do on the Senate floor.

The next obstruction weapon of choice has been completely unnecessary delays on the floor of the Senate. Democrats have done everything they can to slow the procedures necessary to get to a roll call vote. For context, before 2001, only 1 percent of judicial nominees with no opposition were confirmed by a time-consuming roll call vote. Under President George W. Bush, that figure jumped to 56 percent. Before 2001, there had been four filibusters of judicial nominees, and no majority-supported judicial nominee had ever been defeated by a filibuster. Under President George W. Bush, Democrats conducted 20 filibusters and ultimately kept multiple appeals court nominees from being confirmed.

Delays like this continue to this day. In July, we held another unnecessary cloture vote on a district court nominee. After voting 97-0 to end a debate that no one apparently wanted in the first place, Democrats forced us to delay the confirmation vote by two more days. This was the first time in history that a unanimous cloture vote was not followed immediately by a confirmation vote. It could have taken a few hours, but instead took two weeks from the filing of a cloture motion to the final unanimous confirmation vote.

What was the point of all that? It’s simple. Democrats want to make confirming President Trump’s judicial nominees as cumbersome and time-consuming as possible.

At this point in President Barack Obama’s first year, when Republicans were in the minority, the Senate took cloture votes on fewer than 1 percent of the executive and judicial branch nominees we confirmed. This year, with Democrats in the minority playing confirmation spoiler, the Senate has been forced to take cloture votes on more than 27 percent of the nominees we confirmed. In fact, including those we will take this week, Democrats have forced us to take 51 cloture votes on President Trump’s nominees so far this year. That is seven times as many as during the combined first years of all nine presidents since the cloture rule has applied to nominations.

Lest we forget, in 2013 Democrats abolished the ability of 41 senators to prevent confirmation. Today, they are demanding the ability of one senator to prevent confirmation. If that is not an abuse of the confirmation ground rules, it’s hard to tell what is.

Recently, I have taken to the floor to denounce these dilatory tactics by the Democrats. As I argued during past administrations of both parties, nominees should be debated and processed based on the merits, not tit-for-tat political games. Last week, the Republicans in the Senate showed that we plan to get this job done, one way or the other.

By Orrin G. Hatch

CQ-Roll Call

Sen. Orrin G. Hatch, R-Utah, is the senior member and former chairman of the Senate Judiciary Committee.

Sen. Orrin G. Hatch, R-Utah, is the senior member and former chairman of the Senate Judiciary Committee.

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