Republican Federal Court Packing Quietly Continues Even As Senate Lies In Recess

There has always been a certain measure of political gamesmanship regarding federal court appointees, with escalating partisanship making the blocking of nominees more and more a possibility each year. However, the Trump administration has selected a new tactic and is quietly (or, in a few high-profile cases, not so quietly) implementing the strategy, according to NPR. Since President Trump took office in 2017, Senate Republicans have sought to speed up the confirmation process of new federal judges, shunning long-observed traditions that ensured some consensus on who would sit upon those federal court benches.

For example, the longstanding tradition of not taking action on a federal judge who did not have the approval of their home state senators has been cast aside. The Senate is no longer waiting for the American Bar Association to complete a professional evaluation of each nominee. Republican Senators are packing multiple nominees into a single hearing, a practice that had previously been largely avoided. Now, for the first time ever, the Senate Judiciary Committee is holding confirmation hearings during a Senate recess.

Republicans are taking advantage of an opportunity provided by the midterm elections to move forward without Democratic oversight. With 26 Democrats and independents who caucus with the Democrats defending their Senate seats this election and out on the campaign trail, Senate Republicans are taking advantage of their absence during the recess.

This week, confirmation hearings for two appeals court nominees were held by just two Republican Senators — Orrin Hatch of Utah, who is retiring, and Mike Crapo of Idaho. The two Senators concluded the confirmation hearing in just 19 minutes.

The strategy has paid off in spades for Republicans over the past two years. The Republican-controlled Senate has now confirmed 29 of President Trump’s nominees to federal appeals courts. By comparison, the Senate only confirmed two of President Obama’s nominees over the final two years of his term. The flood of President Trump’s nominees has resulted in an astonishing one out of every six sitting, active federal court judges is a Trump appointee.

The federal appeals courts decide cases over a broad range of topics and are the gatekeepers for the Supreme Court. The federal appeals courts decide over 27,000 cases per year, compared to only 100 for the Supreme Court.

Vermont Senator Patrick Leahy, who chaired the Senate Judiciary Committee for ten years, warned of the danger of pushing aside longstanding traditions that attempted to achieve at least a limited bipartisan consensus on confirmations. He said the current Republican strategy “is eventually just going to make the federal courts look not independent, but political. And that’s going to hurt everybody.”