Judiciary Primed to Address Courts’ ‘Vacancy Crisis’

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By Kimberly Strawbridge Robinson and Alexei Alexis

Nov. 9 — Cutting through the “sea of obstruction” to judicial appointees is more likely now that Republicans have taken control of both the Senate and White House, Lena Zwarensteyn of the progressive American Constitution Society told Bloomberg BNA.

The Senate Judiciary Committee, likely to continue to be led by Sen. Charles Grassley (R-Iowa), is poised to deal with what Sen. Patrick Leahy (D-Vt.), the current ranking member, called a “vacancy crisis” in an Oct. 27 press release.

The committee saw little shake up of its membership. Sen. David Vitter (R-La.), who didn’t seek re-election, is the only committee member not returning to the senate of the six who were up for re-election.

Still, the Republican party’s ability to hold on to the Senate put the brakes on a “dramatic overhaul of an already left-leaning” federal judiciary, Carrie Severino of the conservative Judicial Crisis Network, Washington, told Bloomberg BNA.

President-elect Donald Trump will now have an incredible opportunity to fill the judiciary “with constitutionalist judges in the mold of Justice Scalia,” Severino said. She was referring to the late U.S. Supreme Court Justice Antonin Scalia, who passed away unexpectedly in February, leaving an as-yet-unfilled seat on the high court bench.

Going Nuclear

That’s because the number of judicial vacancies nearly doubled during the 114th Congress, a Sept. 6 letter from American Bar Association President Linda A. Klein to Senate leaders said.

“The most favorable scenario for a president looking to fill those vacancies is to have a Senate of the same party,” Edward Whelan, of the conservative Ethics and Public Policy Center, Washington, told Bloomberg BNA.

“The upside of same-party control of the Senate is all the greater now that the filibuster has been abolished for lower-court confirmations,” Whelan, who worked as a Senate Judiciary staffer from 1993-1995, said.

In 2013, Senate Democrats abolished the filibuster for all judicial nominees except those to the Supreme Court. Under that “ nuclear option,” Senate Republicans only need to scrape up 50 votes—not 60—to confirm most judicial nominees.

Its unclear if Senate Republicans will extend the nuclear option to the Supreme Court, should Democrats try to block a nomination.

The current Supreme Court nominee, Merrick Garland, whom President Barrack Obama nominated in March, has been blocked by Senate Republicans. His nomination is even less likely to go through now.

But Caroline Frederickson, also from the American Constitution Society, said that if Republicans nominate someone with the same “credentials and fair-minded approach to the law” as Garland, such a person “would not need to fear a filibuster.”

Antitrust Concerns

In light of concerns about a recent wave of megamergers, committee members are also expected to be actively engaged in the confirmation process for the person selected to lead the Antitrust Division of the Department of Justice.

“One interesting thing the election has shown is that there’s a large chunk of the voting population that’s in a very populist mood, with a lot of hostility toward large organizations,” said Paul Bock, a partner at Holland & Knight LLP, Washington. “I think you’re going to see both Democrats and Republicans responding to that.”

Top committee members on both sides of the aisle have urged DOJ to thoroughly review AT&T Inc.'s planned $85.4 billion purchase of Time Warner Inc. A subcommittee hearing on the deal has been set for Dec. 7. Trump has said that he would block the merger.

To contact the reporters on this story: Kimberly Strawbridge Robinson and Alexei Alexis in Washington at krobinson@bna.com, aalexis@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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