Significant Events and Issues
Reorganization of the Senate Judiciary Committee
When the 114th Congress convened on January 6, Senators returned to a chamber now controlled by Republicans (54 Republicans, 44 Democrats, and 2 Independents who caucus with the Democrats). Leadership positions flipped, with Senator Mitch McConnell now Majority Leader and Senator Harry Reid, Minority Leader. Likewise, Senator Grassley, a non-lawyer, is now chair of the Judiciary Committee and Senator Leahy is ranking member. The Senate reorganization also changed the ratio of seats on the Committee from 10 Democrats and 8 Republicans to 11 Republicans and 9 Democrats. Republicans added three new members to their committee roster − Dave Vitter (LA), and newly elected members, David Perdue (GA) and Thom Tillis (NC), neither of whom are lawyers. Democrats lost one member − Mazie Hirono (HI).
Vacancies at Start of 114th Congress
On the first day of the session, there were 45 vacancies on the bench. President Obama promptly renominated 12 of the 14 nominees that were returned at the end of the last Congress, but two of those are for future vacancies.
The low vacancy rate does not paint a complete picture of the status of the nomination and confirmation process and should not lull any into a state of complacency. For example, there still are a significant number of long-standing district court vacancies in Pennsylvania and Texas. The district courts in Pennsylvania (Third Circuit) and Texas (Fifth Circuit) have a total of 11 vacancies and only three have nominees pending. The two circuits also have three circuit court vacancies.
Senator Grassley outlined his approach to judicial confirmations in his home state papers soon after the Midterm Elections. He stated that the Senate Judiciary Committee “should not be a rubber stamp for the president” when it comes to nominations, and he expressed the importance of quality judges saying:
“Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. Judges are to decide cases and controversies —not establish public policy or make law.”
Senate Acts Slowly on Nominees
Neither the Senate Judiciary Committee nor the Senate has acted expeditiously to confirm pending nominees. In fact, during the first three months of this Congress, the Senate failed to hold any confirmation votes, even though five of the six pending nominees were slated to fill judicial vacancies in Utah and Texas, states with two Republican Senators, three of which also happen to be Judiciary Committee members. While reorganization of the Senate and the confirmation of Attorney General Lynch may have contributed to initial delays in the confirmation process, it appears that leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.
The first confirmation occurred on April 13, when Alfred Bennett, renominated to the District Court of the Southern District of Texas at the start of this Congress, was confirmed. Since then only three additional judges have been confirmed to the district courts. On July 7, six months after the start of the Congress and almost seven weeks since its last confirmations, the Senate confirmed its fifth judicial nominee and first confirmation to the courts of appeals, Kara Fernandez Stoll, who was nominated to the U.S. Court of Appeals for the Federal Circuit. Kara Fernandez Stoll is the first African-American woman to sit on the Court of Appeals for the Federal Circuit.
As a result, the number of vacancies and courts with judicial emergencies are increasing and the backlog of civil lawsuits keeps growing. Concern over the growing backlog prompted the Wall Street Journal to run a cover story about it on April 7, 2015.