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.”
Confirmation Action Stalls During First Three Months
During the first three months of the Congress, the Judiciary Committee has only scheduled two nominations hearings and reported five district court nominees by unanimous voice vote to the floor for a vote. The Senate has failed to schedule any floor votes to date, even though five of the six pending nominees are slated to fill judicial vacancies in Utah and Texas, states with two Republican Senators, three of which happen to be Judiciary Committee members.
While some delay is attributable to the confirmation hearings for Loretta Lynch, nominated to the positon of Attorney General of the Unites States on November 8, 2015, the Judiciary Committee completed its deliberations on February 26, when it reported her nomination to the Senate, where it has stalled. The Judiciary Committee also reported out five judicial nominees on February 26 and has not taken any further action on judicial nominations since then.
As a result of inaction, the number of current vacancies has increased from 43 to 55 and the number of judicial emergencies has doubled.