When the 116th Congress started last Thursday, all pending nominations from the 115th Congress were sent back to the White House and the nominees will need to be renominated to be considered for confirmation by the new Senate. The hundreds of nominations sent back to the White House included a record number of judicial nominees, due to Democrats' delay and obstruction. Tom Jipping of the Heritage Foundation described the problem and the Democrats' tactics:
Breaking records is not always a good thing. When the 115th Congress adjourns, 69 nominations to the federal district and appeals court will expire and be returned to President Trump. That will break the record of 54 set in 1992, at the end of the 102nd Congress. . . .
Here’s one of the Democrats’ more subtle tactics. The Senate must end debate, or invoke cloture, on a nomination before it can vote on confirmation. If senators will not cooperate to end debate informally, Senate Rule 22 provides for a time-consuming roll-call vote for cloture, followed by as much as 30 hours of debate.
In the past, very little of that post-cloture debate time was used since the final outcome was obvious. Over the five decades before Trump took office, confirmation followed cloture by only a few hours nearly 50 percent of the time. Even during the Obama administration, when the process was said to be so difficult, cloture and confirmation occurred on the same day about 45 percent of the time.
That outcome has dropped to 27 percent under Trump. And this is just one obstruction tactic Senate Democrats have deployed to make the confirmation process as cumbersome as possible.
Mr. Jipping also describes how this is increasingly a problem as the number of lengthy vacancies and declared judicial emergencies grows. Democrats have decried lower vacancy and judicial emergency rates under Democratic presidents, but they seem unconcerned with slower litigation processes, increased litigation costs, and more difficult access to justice while a Republican is president.
The mainstream media was eager, as always, to help the Democrats in their efforts to oppose President Trump, with a Newsweek headline declaring "Donald Trump Suffers Setback as Senate Rejects Hundreds of Nominations." Yet instead of the Senate "rejecting" the nominations, what really happened at the end of the last Congress is that the Democrats, led by Senator Chuck Schumer, refused to do the customary end-of-Congress agreement to confirm many non-controversial nominees by voice vote. While the Senate did confirm 77 nominees on Wednesday evening, no judicial nominees were included in the final confirmation package of the 115th Congress.
What will happen to the nominations that expired at the end of the last Congress? To continue to be considered for confirmation, the President will need to re-nominate the individuals. Those who have already had committee hearings will not need another hearing, but they will need to be voted out of committee again and considered on the Senate floor. And the Democrats will continue to use every procedural delay at their disposal. But fortunately, anticipated incoming Senate Judiciary Chairman Lindsey Graham and Majority Leader Mitch McConnell remain committed to prioritizing judicial confirmations and resisting the Democrats' attempts to delay, obstruct, and attack President Trump's excellent judicial nominees.