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) and a Senate Judiciary Committee now chaired by Senator Grassley, a non-lawyer, with Senator Leahy as ranking member.
Senator Grassley outlined his approach to judicial confirmations in his home state papers soon after the Midterm Elections. He said that the Senate Judiciary Committee “should not be a rubber stamp for the president.” He stated: “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.”
First Session Summary:
During the first three months of the session, 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. The lack of action and concern over the growing backlog of civil lawsuits prompted the Wall Street Journal to run a cover story about it on April 7, 2015.
The first confirmation occurred on April 13, when Alfred Bennett, originally nominated in the 113th Congress (September 2014) to the District Court of the Southern District of Texas, was confirmed by a vote of 95-0. During the rest of the Session only nine additional district court judges were confirmed. On July 7, the Senate confirmed its first appellate court judge, Kara Fernandez Stoll, to the U.S. Court of Appeals for the Federal Circuit by a vote of 95-0. She was the only appellate court judge confirmed during the 1st Session.
Excessive delays followed by unanimous confirmation votes on these and other nominees confirmed during the 1st Session suggest that Senate leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.
In December 2015, ABA president Paulette Brown wrote Senate leaders urging confirmation of nominees pending on the floor prior to adjournment of the 1st Session. While the Senate confirmed only one additional nominee in December, Senate leaders did come to an agreement to not return pending nominees and to vote on five specified nominees early in the next session.
In summary, there were 45 vacancies at the start the 1st Session and 66 vacancies at adjournment. During the Session, President Obama made 42 nominations (12 of whom were renominated from the previous Congress), and the Senate confirmed 11 nominees − 10 to the district courts and one to the Court of Appeals for the Federal Circuit.
Second Session: Notable Events
Unexpected Supreme Court Vacancy
During the first two months of the 2nd Session, Senate leaders adhered to the agreement worked out at the end of the 1st Session, allowing up-or-down votes on five nominees, including Luis Felipe Restrepo to the Third Circuit, prior to the Presidents’ Day recess. All five were confirmed, four with resounding majorities or no “nea” votes, and one with significant opposition.
During the remainder of February, the Judiciary Committee continued to process nominees, holding one hearing and one executive session. The expectation that the Senate would continue to slowly process nominees – at least district court nominees – until the so-called “Thurmond Rule” was informally invoked during late summer or early fall and the process closed down in anticipation of the presidential elections in November. However, unexpected events have upended even this prospect.
On February 13, 2016, Justice Antonin Scalia died unexpectedly. Within hours, Senate Majority Leader McConnell issued a short statement that concluded by stating: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
This unleashed a torrent of partisan debate and comments from pundits, academics, editorial boards, organizations, past government officials and more. Senator Grassley at first appeared to waver over how the Senate Judiciary Committee would proceed, but then sent a letter, signed by all of his Republican colleagues on the Committee, that stated in part:
Given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.
In response, Democrats on the Committee sent a joint letter urging Grassley to reconsider his position.
President Obama Makes Supreme Court Nomination
Soon after Justice Scalia died, President Obama announced his intention to make a nomination and described the qualifications he was looking for in a nominee.
On March 16, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit to be associate justice of the U.S. Supreme Court. Judge Garland previously was confirmed to the DC Circuit Court on a vote of 76-23 in 1997 and has served as chief judge since February 2013.
The President has continued to make nominations to the lower courts. In fact, he made eight nominations in March and 12 in April -- two to the courts of appeals and 12 to the district courts.
There is no doubt that Judge Garland commands the respect of Democratic and Republican senators alike. However, rather than engaging in debate over Garland’s qualifications to be associate justice, Senate Republican leadership is continuing to keep the discussion focused on why they do not intend to take action. During the executive business meetings on March 10 and March 17, rather than voting on lower court judicial nominees on the schedule, senators debated whether they had a duty − constitutional or otherwise — to act on the nomination and whether there was precedent for their stated position.
While a handful of Republican senators have agreed to visit with the nominee, Senator Grassley has reiterated that he does not intend to hold hearings on Judge Garland’s nomination this year.
After no activity on nominees since the death of Justice Scalia on February 14, the Senate Judiciary Committee approved by voice vote three nominees on April 7 and one on April 14. On April 11, the Senate acted on its sixth nominee this session, confirming by unanimous vote the nomination of Waverly Crenshaw Jr. for a seat on the District Court for the Middle District of Tennessee. Judge Crenshaw waited nine months for his floor vote.