At least 10 judicial nominees who couldn’t even get a confirmation vote in the final years of President Barack Obama’s administration ended up on the bench after Donald Trump’s election.
Those nominees, blocked by Senate Majority leader Mitch McConnell and other Republicans while Obama was in the White House, got a second chance. Rather than blocking them under Trump, McConnell sought to speed up the confirmation process. Thanks to the shift in political priorities, Republicans confirmed them with bipartisan support.
About 1 in 15 of the judges confirmed during the Trump administration were first nominated by Obama, a CQ Roll Call analysis found. Several more Obama nominees who were renominated by Trump are still awaiting a Senate vote.
The pace of judicial confirmations picked up dramatically after the 2016 election — but not enough to satisfy McConnell. When he deployed the “nuclear option” to slash debate time on district judicial nominees in April, he partly justified it by saying the pace of confirmations was too slow.
“We need to make more headway on the backlog of qualified judicial nominees who are waiting for confirmation,” McConnell said in July. But that backlog may not have been as large if confirmation votes had happened in Obama’s final years at the same rate they did at the end of President George W. Bush’s term.
McConnell’s office did not comment on specific judges. A spokesman said many of Obama’s nominees were not confirmed during the final two years of the administration, and only a few were renominated by Trump.
In the last week of July, McConnell filed a motion to end debate on more than a dozen of Trump’s nominees to be district judges — a list McConnell described as bipartisan. Those included James Wesley Hendrix of Texas and John Milton Younge of Pennsylvania, who were both confirmed before the Senate began its August recess. They had been waiting for a vote since Obama was president.
Pennsylvania judges Susan Paradise Baxter and Marilyn Jean Horan also did not get confirmation votes during the Obama administration but were later confirmed by voice vote after being renominated by Trump.
“While I am pleased that they are now confirmed federal judges, it is appalling that the nominations of Susan Paradise Baxter, Marilyn Jean Horan and John Milton Younge dragged on for so many years,” Pennsylvania Sen. Bob Casey, a Democrat, said in an email to CQ Roll Call. “They are highly-skilled legal professionals that bring fairness and integrity to the federal bench.”
Other judges nominated first by Obama and confirmed during Trump’s administration included those tapped to serve on district courts in Oklahoma, Texas, South Carolina and Idaho — all states with two Republican senators.
Obama renominated very few of Bush’s nominees, so some judicial watchers didn’t think Trump would name any of Obama’s. But some Obama nominees had strong support from Republicans and Trump renominated them, said Carl Tobias, a federal judiciary expert at the University of Richmond School of Law.
“It is one of the hidden secrets about this administration … And I think it’s a positive thing,” Tobias said. “It’s an olive branch and some bipartisanship in an otherwise pretty desolate process, certainly at the appellate level.”
Fewest since Truman
There has long been a bipartisan tradition that confirmation votes on nominees slow down, and even halt, in a presidential election year, Tobias said. But McConnell took that to new levels in Obama’s final years, most notably by blocking a vote on Judge Merrick Garland’s nomination to succeed Supreme Court Justice Antonin Scalia.
“McConnell’s brazen ahistorical justification for mistreating Merrick Garland means that this tradition, like so many others, may be dying, as each party ratchets down the process,” Tobias said.
In 2007 and 2008, a Senate controlled by Democrats helped confirm 68 Bush judicial nominees, including 10 to appeals courts, Tobias said. The last 10 district judges were confirmed Sept. 26, 2008.
By comparison, a Republican-dominated Senate confirmed 20 of Obama’s judicial nominees in the final two years of his term, including two to appeals courts. That’s the fewest since Harry Truman’s presidency, Tobias said.
The last judicial confirmation vote McConnell allowed under Obama was on July 6, 2016, meaning the traditional cutoff came more than two months earlier than it did when Democrats were dealing with Bush, a Republican president.
And McConnell had already announced there would be no vote on Garland, who had been nominated by Obama in March of 2016.
In the two years of Trump’s administration, 83 judges were confirmed. Since the beginning of the 116th Congress in January, the Senate has confirmed another 63.
Judge Neil Gorsuch was nominated by Trump after McConnell held the Supreme Court seat open and invoked the “nuclear option” — the first of two times he would do so — to reduce the number of votes needed to fill Scalia’s seat. The move changed the threshold for confirming Gorsuch and future Supreme Court justice nominees from 60 votes to 51, or 50 senators and the vice president.
Four district court nominees first nominated by Obama have been renominated by Trump but are still awaiting votes. They are Stephanie A. Gallagher of Maryland, Mary S. McElroy of Rhode Island, Diane Gujarati of New York and Robert J. Colville of Pennsylvania.
Casey, who’s worked with Republican Pennsylvania Sen. Pat Toomey on judicial nominations, is not happy one of his state’s nominees have been in limbo so long.
“Senator Toomey and I have worked together in a bipartisan manner to fill 22 District Court vacancies in Pennsylvania with qualified, experienced and mainstream judges,” Casey said. “It is ridiculous that there are qualified Obama Administration nominees who have bipartisan support in the Senate, but have not received a floor vote.”
Hendrix and four others nominated to serve on Texas benches appeared before the Senate Judiciary Committee nearly three years ago, on Sept. 7, 2016.
Hendrix, then an assistant U.S. Attorney for the Northern District of Texas, and his counterparts received praise from Sen. Ted Cruz during the hearing. Cruz described how he had worked with fellow Republican Texas Sen. John Cornyn to create a bipartisan federal judicial advisory committee consisting of members of the bar throughout his state.
“It is designed to be an exacting process, but it is also designed to be a process that helps the cream to rise to the top and helps produce nominees who will be the very best at what they do on the bench,” Cruz said.
Republican-backed judicial nominees were also held up in the red state of Idaho. In April 2016, David C. Nye was nominated for an open federal district court judgeship. The Gem State’s two Republican senators, Jim Risch and Michael D. Crapo, endorsed his quick confirmation. But Idaho had to wait a little longer for relief. Nye was confirmed in July 2017 after being renominated by Trump.
Tobias said that the way McConnell decided not to allow votes on judicial nominees, including Garland, could signal future trouble
“I think the battle lines have hardened for Democrats, and all bets are kind of off in 2020,” Tobias said. “I think there may be payback.”
Casey expressed concern that the waiting game could continue for some nominees, or for future nominees whose senators have signed off on the nominee but don’t get a Senate vote.
“The Trump Administration and Senate Republicans have continuously dismantled Senate rules and traditions — including the blue slip process for circuit court nominees — so that they can put highly ideological, corporate jurists on the federal bench,” Casey said.“It’s a shame that Majority Leader McConnell set the precedent for this breakdown of Senate norms by playing partisan politics and arbitrarily shutting down the judicial nomination process during the final years of the Obama Administration.”
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