Judicial Nominations Likely to Die at Year’s End, Republicans Say

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By Nancy Ognanovich

Nov. 16 — Senate Republican leaders said they had no plans to move any of President Obama’s nominees to serve on the federal judiciary this year, which means 30 judicial picks on the chamber’s executive calendar will die with the 114th Congress.

Senate Majority Whip John Cornyn (R-Texas) said he and Majority Leader Mitch McConnell (R-Ky.) have no plans to take up any of the judges pending on the calendar, even those nominated with the strong recommendation of Republican senators. He said all the Obama nominees ready for the floor and dozens of others still pending in the Judiciary Committee will probably be returned to the White House at the end of the session.

“I don’t see a rush to confirm a bunch of Obama nominees for the federal bench,” Cornyn told reporters when asked about the status of the judges awaiting confirmation.

Republican leaders’ stance ensures that many vacancies in the federal judiciary will remain unfilled for months and also marks the end of what has been a mutliyear effort by many judges to be appointed to the federal bench. Fewer than 20 judges have been confirmed since Republicans took over the chamber in early 2015. Some of the nominees have been awaiting action since that winter.

“We have a very limited period of time that we’re in session, so I don’t think it’s realistic to see these judges confirmed,” Cornyn said.

Trump to ‘Make His Mark.’

The nominees awaiting confirmation for the longest period include four nominated in 2014 for the U.S. Court of Federal Claims. The bulk of those on the calendar were nominated to serve in the federal district courts, although there also are a few for appellate level courts on the calendar.

Meanwhile, dozens more—including the nomination of Merrick Garland to serve on the U.S. Supreme Court—continue to await action at the Judiciary Committee. Cornyn suggested he doubts any of those—including five judges that he and Sen. Ted Cruz (R-Texas) recommended to Obama—have any chance to win confirmation this year.

Cornyn said it would be difficult to clear the calendar in what will be a short lame-duck session. But he said the shift in the political landscape now makes it unlikely judges will be confirmed.

“It might have been different if we had Hillary Clinton coming in but we don’t, we have a Republican administration and I think they’re going to be wanting to make their mark on the federal judiciary, beginning with the Supreme Court,” Cornyn said.

There is a large mark to be made: President-elect Donald Trump has an opportunity to shift the entire judicial system to the right by filling the more than 100 vacancies on the federal bench with conservative lifetime appointees (see related story in this issue).

According to the Administrative Office of the U.S. Courts, as of Nov. 16, it said there are 81 vacancies at the federal district courts, 13 at the courts of appeal, two at the International Trade Court, and six at the Court of Federal Claims.

More Rules Changes?

Cornyn and Sen. Roy Blunt (R-Mo.), another member of McConnell’s leadership team, told reporters that changes Democrats forced through two years ago to eliminate a 60-vote threshold for judicial nominees will greatly improve Trump’s chances to put in place the more conservative judges the party wants. Former Majority Leader Harry Reid (D-Nev.) decided to employ the “nuclear option” to get Obama nominees confirmed after McConnell had repeatedly blocked action on Obama judges.

Lawmakers said they aren’t planning at present to change the 60-vote rule for Supreme Court nominees but will use the 51-vote threshold for lower court judges to fill the vacancies with Trump nominees.

Blunt said there shouldn’t be any “funny business” that would make Republicans consider expanding the rules change. Meanwhile, the GOP “should be grateful that Harry Reid established a precedent for almost every nomination that now a Republican congress with 51 votes can get people into these jobs with a Republican president quicker than has been the case in decades. For the new administration and this Congress it produces a good result. All the lower judgeships can be filled with 51 votes, every nomination, and hopefully we’ll make the most of it.”

To contact the reporter on this story: Nancy Ognanovich in Washington at nognanov@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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