The Senate spent this entire week confirming just five of President Trump’s circuit court picks. At that rate, it would take nearly eight weeks of working every day and doing nothing else — no tax overhaul, no year-end spending bills, no debt increase, no Children’s Health Insurance Program extension — to confirm the 47 other judicial nominees the president has pending.
And if Mr. Trump were to announce nominations for the 100 other federal court vacancies, it would take another four months — through the beginning of May, with the Senate doing nothing else — to confirm them.
Beneath the major policy fights, Republicans and Democrats are locked in a fierce battle in the Senate over the direction of the federal courts. Mr. Trump and his allies are moving with extraordinary speed to put as many of his nominees on the bench as possible, while Democrats have erected an unprecedented level of hurdles, forcing the chamber to spin its wheels for up to 30 hours per nominee under Senate rules.
The outcome is rarely in doubt, with Republicans flexing their majority to confirm nominees without any Democratic support. But the amount of time it’s taking has become a sore spot.
“Democrats have shown that, in most cases, it is far too much time, because even though we have to spend all of the time, they use very little of [that time] talking about the nominees,” said Sen. John Barrasso, Wyoming Republican.
He has proposed a compromise that would cut the amount of debate time allowed for district judges to two hours — though appeals court picks would still face the full 30-hour limit. It is similar to a deal Republicans agreed to in 2013, when they were in the minority and Democrats were powering through President Obama’s picks.
But Democrats have said they are not interested.
Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee, brushed aside questions about the deal Thursday, and Senate Minority Leader Charles E. Schumer, New York Democrat, flatly rejected the proposal Tuesday.
He said even with the roadblocks, the Senate has been moving quickly.
“There were more judges approved at this period of time in the Trump administration than there were in the Obama administration when Democrats were in the majority,” he said this week.
The numbers back that up: During Mr. Obama’s first year, just three federal judges were confirmed. So far this year, Mr. Trump has won approval of 13 judges.
Two of those came Thursday, when the Senate voted 56-41 to confirm Colorado Supreme Court Justice Allison Eid for a seat on the 10th U.S. Circuit Court of Appeals, and voted 54-43 for Stephanos Bibas to take a seat on the 3rd Circuit.
Both picks had to overcome a Democratic filibuster, and just four Democrats backed Justice Eid. Only one, Sen. Joe Manchin III of West Virginia, voted for Mr. Bibas.
Earlier this week, Amy Coney Barrett was confirmed to the 7th U.S. Circuit Court of Appeals, and Michigan Supreme Court Justice Joan Larsen was confirmed to the 6th U.S. Circuit Court of Appeals.
Nan Aron, president of the progressive Alliance for Justice, said Thursday that Justice Eid’s confirmation is good for big corporations and conservative special interests.
“Eid’s history on the Colorado Supreme Court is as an extreme conservative outlier who is often the lone dissenter in decisions,” Ms. Aron said.
She also criticized Mr. Bibas’ record, saying he has called for harsh and painful punishment.
“He has shown a woeful misunderstanding of civil rights law,” she said.
Mrs. Feinstein said Republicans were unfairly plowing through the nominees, giving senators little time to examine their records and make informed votes.
“Voting on four controversial circuit court nominees in one week is highly unusual, as is voting on nominees just days after they’ve moved out of committee,” she said.
She also speculated that Republicans were trying to stack the courts because Democrat-appointed federal judges have ruled against many of Mr. Trump’s executive actions — particularly on immigration.
Mr. Trump isn’t the first to face those accusations.
Mr. Obama moved during his second term to stack the important U.S. Circuit Court of Appeals for the District of Columbia — which some legal analysts call the second most important court, short of the Supreme Court — after the court ruled against his recess appointment powers, among other losses.
Mr. Obama’s move led to a major showdown with Republicans in 2013 when some of those D.C. circuit nominees were filibustered. Democrats triggered the so-called nuclear option, altering the rules and allowing a mere majority to head off a filibuster rather than the previous 60-vote standard.
Republicans are now taking advantage of that rules change to approve Mr. Trump’s picks with ease.
But being able to confirm the nominees does nothing to reduce the amount of time the Senate has to devote to debate.
Under current rules, once a filibuster has been defeated, senators are allowed to draw out debate for another 30 hours — per nominee.
Mr. Trump has at least 43 nominees pending, which means if the Senate did nothing else and ran the 30-hour clock all day, seven days a week, it would take almost eight weeks of floor time to confirm them all.
If Mr. Trump were to propose nominees for the 100 other court vacancies that already exist, it would take four more months to confirm them should Democrats continue to force filibuster votes on each. So far, Democrats have forced filibusters on all but one of the Trump-nominated judges to reach the floor.
The president has complained about the treatment and took to Twitter this week to praise Senate Majority Leader Mitch McConnell, Kentucky Republican, for devoting time to get the judges through the confirmation process.
“Thanks to @SenateMajLdr McConnell and the @SenateGOP we are appointing high-quality Federal District and Appeals Court Judges at a record clip! Our courts are rapidly changing for the better!” Mr. Trump tweeted Wednesday night.
Hogan Gidley, the deputy White House press secretary, told The Washington Times that the president has delivered on his promise to nominate qualified federal judges.
“Despite Senate Democrats’ use of petty political tactics to delay his nominees, the president will continue nominating outstanding candidates like the five judges confirmed this week,” said Mr. Gidley. “We appreciate the hard work of Chairman Grassley and [Senate] Leader McConnell, and we urge the Senate to confirm all of the remaining nominees because it’s what the American people deserve.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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