he lame duck session of the 115th Congress is shaping up to be, well, lame. But one question is how many judges the Senate will confirm before heading home for Christmas, and let’s hope the upper chamber won’t start the holidays two weeks early.
Majority Leader Mitch McConnell has filed cloture on two judicial nominees—Thomas Alvin Farr for a district court seat in North Carolina, and Jonathan A. Kobes to fill an appellate vacancy on the Eighth Circuit Court of Appeals. The plan is to vote on the two judges and three executive nominees in the next two weeks.
Yet a total of 32 judicial nominees are awaiting confirmation on the floor, and the Senate should push through these nominees lest they have to be reported out of the Judiciary Committee again in the next Congress.
One complication is that the GOP’s Jeff Flake of Arizona has threatened to hold up the 20 judges still awaiting a vote in committee. That includes six circuit-court nominees. Mr. Flake says he wants a vote on a bill to prevent President Trump from firing special counsel Robert Mueller, who is an inferior officer in the executive branch.
Such a bill would be unconstitutional, and in any case next year’s GOP Senate could confirm judges once Mr. Flake has left the building. Blocking qualified judges merely to spite Mr. Trump won’t impress GOP voters in a New Hampshire primary in 2020. It would be a pity if Mr. Flake tarnished his legacy as a reformer on earmarks and other bad practices.
President Trump has also nominated White House regulatory czar Neomi Rao to fill the seat on the D.C. Circuit vacated by Justice Brett Kavanaugh. Ms. Rao’s expertise in administrative law is needed on the court that hears cases involving regulation from executive agencies. But who knows how long Ms. Rao will be in a holding pattern.
All of this is especially important as more than 14% of the judiciary is vacant as of Nov. 20, according to a new judicial tracker from the Heritage Foundation. Compare that with about 12% at the same time during the Obama Administration and 9.4% for George W. Bush. The White House can hardly nominate folks fast enough.
Democrats will continue to try to block every nominee next year and force “cloture” votes that gobble up productive floor time. Mr. McConnell and the Senate GOP have done stellar work confirming judges despite this obstruction. Yet the GOP Senate ought to confirm as many more judges as possible as soon as possible this year, even if it means a few extra days in Washington.
A lack of time isn’t an adequate excuse. If the Senate won’t pass Jobs 3.0 that has passed the House, and won’t vote on criminal-justice reform that has passed the House, and won’t add work rules to food stamps as part of the farm bill that has passed the House, it should at least be able to fulfill the Senate’s constitutional duty and confirm more nominees.
—The Wall Street Journal