115th Congress: Significant Events and Issues
First Session: Supreme Deliberations
When the 115th Congress convened on January 7 after the 2016 elections, Senators returned to a chamber with two more Democrats (Tammy Duckworth from Illinois and Maggie Hassan from New Hampshire) but still controlled by Republicans (52 Republicans, 46 Democrats, and 2 Independents who caucus with the Democrats). A staggering 102 judicial vacancies on the Article III courts awaited their attention.
The event that transformed the landscape with regard to the judicial nomination and confirmation process was, of course, the election of a Republican president. With a united Republican government and the change in the filibuster rules enacted during the 113th Congress (see Historical Note below), Democrats may choose to slow down the process (by demanding cloture votes, for example), but they will be unable to prevent the confirmation of lower court nominees that they find objectionable.
While delays are to be expected at the beginning of a new administration as cabinet positions are filled and vetting teams are assembled, filling the Supreme Court vacancy that arose during the previous Congress on February 13, 2016, as a result of the sudden death of Justice Scalia, trumped any action on lower court nominees during the first three months of the session.
As background, On March 16, 2016, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia, to be Associate Justice of the U.S. Supreme Court. Even though there was widespread respect for Judge Garland among Democrats and Republicans alike, Majority Leader McConnell refused to take any action on the nominee, explaining in a short statement that “[t]he 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.” Despite the persistent criticism of Democrats, leading scholars, and many others, rather than relenting, Republican organizations prepared a list of potential Supreme Court nominees that Donald Trump endorsed and released in September 2016 while on the campaign trail.
Per his campaign pledge, on February 1, 2017, President Trump nominated Judge Neil Gorsuch of the 10th Circuit to be Associate Justice of the Supreme Court. The Senate Judiciary Committee held his confirmation hearing on March 20 and 21 and the ABA Standing Committee on the Federal Judiciary, which had conducted its evaluation of the nominee with the cooperation of the White House, presented testimony on March 21 to explain its “Well-Qualified” rating of Judge Gorsuch.
As expected, there was a show-down over his confirmation. Unable to muster the 60 votes needed to overcome the Democrats’ filibuster, the Senate Majority Leader amended the filibuster rule to make it possible for Gorsuch and future Supreme Court nominees to be confirmed with only 51 votes. Senator McConnell used the same tactic employed by the Democrats in the 113th Congress when they were in the minority to overcome Republican filibusters of lower court nominees. At the time, the idea of extending the “Nuclear Option” to Supreme Court nominees was anathema to both parties, no matter how partisan the process had become. Now, the 60 vote filibuster threshold has been eliminated for all federal judicial nominees, a historic departure for the tradition-laden Senate.
On April 6, the Senate voted to change the filibuster rule for Supreme Court nominees, and on April 7, by a vote of 54-45, the Senate confirmed Neil Gorsuch to be the 113th Justice of the Supreme Court of the United States.
Lower Court Nominations. On March 21, President Trump nominated Amul Thapar to the Sixth Circuit Court of Appeals. His first lower court nominee was confirmed on May 25. Seven nominations were submitted on May 8. Two district court nominees (Nye, ID, and Palk, OK) were originally nominated by President Obama and will proceed directly to markup. On June 8, President Trump submitted five additional nominations and announced his intention to nominate two other individuals. A hearing and vote on some of the nominees occured the week of June 12.
Historical Note: Filibuster Rule Change and Reprisal. Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to enable the Democrats to change the Senate’s Standing Rule regarding filibusters by a simple majority vote rather than the 67 votes (i.e., a supermajority vote) that is normally required to change a Standing Rule. As a result of this successful procedural move, the Senate adopted a new filibuster rule that gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans struck back by making Senator Reid file a cloture motion on every nomination brought to the floor, a tactic aimed at tying up valuable floor time. Nonetheless, the filibuster rule change resulted in a flurry of judicial confirmations, which significantly reduced the number of vacancies by the end of the Congress. It also dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress.
Please click here for additional information about the nomination and confirmation process during prior Congresses.