- The Washington Times - Tuesday, January 30, 2018

The Senate Judiciary Committee this month approved a slate of 17 judicial nominees and sent them to the chamber floor — where they have waited.

Most of them will continue to wait for weeks, and perhaps months, because of unprecedented obstruction by Senate Democrats, who are forcing the Republican majority to clear an exceptional level of procedural hurdles for every court nominee.

At this rate, it would take the Senate an entire month, meeting every day including weekends and passing no other legislation, to confirm more than two dozen pending judicial nominees, The Washington Times has calculated.

The level of obstruction has Republicans considering another attempt to change Senate rules and limit the amount of obstruction a filibuster entails.

“Some of them are confirmed virtually unanimously, and yet it’s taking a great deal of time,” said Sen. Susan M. Collins, Maine Republican. “I just think we ought to work out an agreement.”

Leading the push to change the rules is Sen. James Lankford, Oklahoma Republican, who has suggested limiting the amount of debate time for some nominees. District court picks would get up to two hours of debate, while non-Cabinet-level executive branch nominees would be limited to eight hours.

Cabinet-level, circuit court and Supreme Court nominations would retain their 30-hour limit.

Mr. Lankford said he is hearing from more and more colleagues interested in his idea, but his office has refused to release names of fellow senators endorsing the move.

Confirming judges has been one of the most polarizing issues in an already historically divisive Congress, with Democrats resisting President Trump’s efforts to fill vacant posts with conservative-leaning judges.

The latest battle played out Tuesday, when the Senate voted 56-42 to confirm David Stras, a Minnesota Supreme Court justice, to a federal appeals court seat. He was one of the 17 nominees who cleared the Judiciary Committee earlier this year, and he becomes the 13th circuit court judge confirmed under Mr. Trump.

Democratic leaders had stoked opposition to Justice Stras, saying Republicans were breaking tradition by advancing the pick over the objections of Al Franken before the Minnesota Democrat resigned from the Senate.

Democrats had been counting on the tradition of home-state courtesy, known as the “blue slip” process, to derail at least some of the president’s picks, but Republican leaders have said they won’t allow that.

In many ways, Senate Democrats are facing a system they built themselves, after their leader, Harry Reid of Nevada, triggered the “nuclear option” in 2013 to change the rules and defang the filibuster’s power to block judicial picks.

Now, the threshold for overcoming a filibuster on nominations is just a majority vote rather than the 60 votes it used to take.

Although that prevented a total blockade, it did little to curtail the lengthy delays.

Under current rules, even once a filibuster has ended, the chamber can be forced to debate for up to 30 hours before a final vote.

The Senate voted this month to end a filibuster on Thomas Lee Robinson Parker, a nominee for the U.S. District Court for the Western District of Tennessee. He wasn’t confirmed until nearly 24 hours later, on a 98-0 vote.

During the debate time, not a single senator went to the floor to speak against his confirmation — yet the chamber was unable to do any other business.

William L. Campbell, confirmed to the U.S. District Court for the Middle District of Tennessee the same week as Judge Parker, received a 97-0 vote of support. But Democrats forced 21 hours to debate his nomination — though none of them went to the floor to speak about the nominee’s record.

“My Democratic friends are doing that on purpose. I think it’s unfortunate,” said Sen. John Kennedy, Louisiana Republican. “It could provoke some rule changes.”

Entire weeks of floor time are eaten up confirming three or four picks.

With roughly two dozen judicial nominees awaiting confirmation votes, it could cost the Senate more than a month’s worth of work.

Under Mr. Lankford’s proposal, that could be reduced to less than a week, depending on how long Republicans are willing to keep the Senate in session each day.

Democrats said the blockade was their right and duty.

“We are going to use whatever time is available — every tool in our arsenal will be used to block selectively the judges who would roll back the clock on individual rights and liberties, or lack the qualification,” said Sen. Richard Blumenthal, Connecticut Democrat.

Mr. Lankford’s plan is a rules change, and normally that would take a two-thirds vote to effect. But Democrats are unlikely to cooperate.

Sen. Ron Wyden, Oregon Democrat, said he is unsure if there is a real concern about Republicans changing Senate rules.

But Sen. Joe Manchin III, West Virginia Democrat, appeared open-minded. He said something should be done to help speed things along.

“We have a lot of rules that need to be changed in the Senate to make the place work, we really do, so basically I think if it comes out unanimous or two-thirds, it ought to be restricted time or go to the floor,” Mr. Manchin said.

Republicans, though, said they would consider using the nuclear option to change the interpretation of the rules through a majority vote, which would require a unanimity within the Republican Party that is not there yet.

“I haven’t made my mind up on it, but I do think James is on to something,” Mr. Kennedy said. “If the Democrats continue with this, it makes it much more likely that Sen. Lankford’s proposal will pass.”

Sen. Charles E. Grassley, chairman of the Senate Judiciary Committee, told The Times that he hopes Mr. Lankford’s proposal continues to gain support, but “it’s his responsibility to show that there is 50 or 51 votes to do it.”

Sen. Christopher A. Coons, Delaware Democrat, said one of the few remaining powers the minority has under the current rules is to postpone confirmations — and both parties, he said, are guilty of exploiting the process.

“It is not constructive. And if we had more trust between the caucuses and between our leadership, and if we had a more functional Senate, we would be able to move folks who were not objectionable,” Mr. Coons told conservative radio host Hugh Hewitt on Tuesday.

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