The chamber on Monday night approved two federal judges, Luis Felipe Restrepo in the Eastern District of Pennsylvania and U.S. Attorney Kenneth Gonzalez in the District of New Mexico. This latest move puts it on a lively pace of giving the nod to two judicial nominees a week since Easter.
That’s making it just a tad harder for Democrats to slap Senate Republicans with the label of “obstructionist.” And it’s putting even more pressure on the White House to start naming more nominees, since the Senate is expected to continue to whittle down the waiting list relatively quickly.
As they approve judges, Republicans are quick to point to the number of empty seats to which the White House hasn’t put up a nominee (52 of the 77 open positions).
“Where’s the obstruction if more than 90 percent of the vacancies aren’t even pending before the Senate?” a Senate GOP leadership aide asked. “We can’t block nominees who don’t exist.”
Let’s try some math.
There are 77 judicial vacancies at the U.S. district courts and courts of appeal. But there are a measly five nominees now pending before the Senate. At the rate the chamber is going, they could easily get through that slate by next month.
Democrats, though, say the speed at which the Senate has been moving of late isn’t the entire picture.
Their arguments are a three-fold. First, they note that the Senate floor isn’t the only choke point for judicial nominees — Republican senators are holding up nominees at earlier points in the process, including failing to submit “blue slips,” the way home-state senators indicate that they don’t have objections to a nominee (22 nominees are awaiting votes at the Senate Judiciary Committee).
Some vacancies have remained without nominees because home-state senators have yet to make recommendations to the White House to begin with — and in states with GOP senators, that means they can delay the process there. (However, we hear that President Obama has sufficiently badgered at least Democratic senators to start providing names of judges, and observers are expecting a “raft” of new names from the White House soon.)
And they point to a recent Congressional Research Service report showing that Obama’s first-term nominees had to wait longer than those of most recent presidents (the study found that Obama is the only one of the last five presidents whose district and circuit judges had to wait longer than six months for confirmation). That means this recent Senate sprint is, as one observer said, “just catching up on the backlog.”
Of course, there are plenty of metrics for measuring the pace of judicial nominees. And it’s always a big political battle (see the skirmish over the D.C. Circuit).
But the Senate’s speed — at least for now — is zippy.