One way to evaluate the judicial confirmation process today is to use the standards that Democrats applied when a Democratic president was making the nominations. At the close of the 111th Congress, Sen. Patrick Leahy (D-Vt.), then-Judiciary Committee chairman, took the Senate floor to warn about “a dramatic departure from the traditional practice of considering district court nominations expeditiously and with deference to home state senators.”
He claimed, for example, that the Judiciary Committee had approved only five nominees to the U.S. District Court by a party-line vote since 1945 and that four of them had occurred in the previous two years.
If that was a “dramatic departure from the traditional practice,” what’s happening now must be positively histrionic. The same thing that so troubled Leahy in 2010 happened 25 times in the first eight months of 2019. Leahy not only failed to object, he actually led the effort.
Leahy returned to the floor—and the topic of dramatic departure—the next day to observe: “Since 1949, cloture motions have been filed on only three district court nominations.” When the minority refuses to give consent informally for ending debate so the Senate can vote on a nomination, Rule 22 provides for filing a motion, followed by a recorded vote, to do so formally. It’s a time-consuming process.
Leahy did not mention then that all three of those previous cloture motions—in 1986, 1999, and 2003—were necessary because Democrats refused to give consent in an attempt to filibuster those district court nominations. And what Leahy would surely not mention now is that Democrats have refused to consent to end debate, requiring more cloture motions and votes, 81 times on district court nominees since President Donald Trump took office.
Leahy addressed the same issue on March 27, 2014, complaining that “we are once again spending unnecessary floor time overcoming a procedural obstacle so we can move to an up-or-down vote on a judicial nomination.” He was especially annoyed because, just four months earlier, Leahy and his fellow Democrats had neutralized cloture votes as real weapons in the confirmation process.
Rule 22 says that invoking cloture requires “three-fifths of Senators duly chosen and sworn,” or 60 votes. This allowed a group of senators who lacked the majority to defeat a nomination outright to still prevent confirmation by preventing a final vote altogether.
On November 21, 2013, Senate Democrats voted to reinterpret “three-fifths” in Rule 22 to mean “simple majority.” Since the votes needed for cloture is now the same as for confirmation, Rule 22 can no longer be used to defeat nominations. But since Rule 22 still provides for filing cloture motions and taking cloture votes, it can be used to delay the final result. That’s why Leahy called it an unnecessary procedural obstacle.
When Leahy voiced his complaint in 2014, five years into the Obama administration, the Senate had taken 38 cloture votes on judicial nominations. The Heritage Foundation’s Judicial Appointment Tracker shows that the Senate has been forced to take nearly three times as many cloture votes on Trump judicial nominations in less than three years. Leahy himself has voted 60 times for the very “unnecessary floor time overcoming a procedural obstacle” that he condemned a few years earlier.
Applying Democrats’ own standards shows how difficult the confirmation process has become. Trump recently sent a dozen more judicial nominees to the Senate, which has a lot of work ahead to fill more than 100 vacancies across the country.