With the Republican-controlled Senate returning to town next week, one of the things they should turn their attention to is moving judicial nominations. Because vacancies are always opening up on the courts, the Senate has to confirm a number of judges just to keep even. So far in the 114th Congress, we are not keeping even.
When the lame duck session of Congress ended in mid-December, there were 39 vacancies on our nation's federal circuit and district courts. Today there are 46 vacancies, 14 of them officially designated as judicial emergencies. Another five district court judges will be stepping down in just the next three weeks.
Even taking into account that the committee has also been handling the Attorney General nomination, we could and should have seen more progress on judges by now. There has been only one judicial nominations hearing, back in January, and the four Utah and Texas district court nominees who have now been fully vetted were scheduled for a committee vote last week. This was actually a critical test for the GOP, since it was their first chance to show that they would not continue to engage in the practice of needlessly delaying committee votes on judicial nominees just because they can. Unfortunately, they failed, holding the nominees over for two weeks on the basis that it was their first time on the agenda (in other words, they delayed the vote because they could).
When senators come back to town next week, the Judiciary Committee should vote these four nominees out, and the full Senate should promptly hold a confirmation vote.
It is also past time to hold hearings for people who were nominated more than three months ago, like Third Circuit nominee L. Felipe Restrepo (nominated November 12). Already a judge in the Eastern District of Pennsylvania, Restrepo has the bipartisan support of home state senators Bob Casey and Pat Toomey. He would be the first judge on the Third Circuit with experience as a public defender, as well as the first Latino judge from Pennsylvania on the Third Circuit. There is no reason to delay a hearing for him or other long-waiting nominees.
To judge how the Republican Senate is doing, a convenient basis of comparison is the Democratic Senate during George W. Bush's last two years. As we noted when discussing the remarkable success in confirming judges in 2014:
The Bush example is particularly instructive. At the beginning of 2007, 56 judgeships were vacant. Rather than taking advantage of their new majority as a result of the 2006 elections to allow vacancies to build up, Senate Democrats made sure to process Bush's nominees in a fair and timely manner. … Throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer. The Senate confirmed 68 judges during those two years, getting the number of vacancies down to as low as 34 in the early fall of 2008.
So keep an eye on how many judicial vacancies there are and whether that number goes up or down. That will be a good indication of whether Republicans are working in good faith to keep America's judicial system effectively staffed, or whether they are instead deliberately allowing vacancies to build up.