A surprising, but promising, apparent truce of the seemingly long-running “confirmation wars” arose in the three-week period before the U.S. Senate departed in September to campaign. The appointment of six well-qualified, mainstream district court nominees and one court of appeals nominee on bipartisan votes might signal a recent pause in the counterproductive downward spiraling process epitomized by stark partisanship and significant party-line voting. However, no judge confirmed received more than four GOP senators’ votes, and two earned only one yes ballot. When the upper chamber returns for a lame duck session this week, it must enlarge that brief truce.
On May 31, 10 GOP senators proposed what could have been the most draconian recent development in modern lower federal court appointments. The Republican senators posted on X a “Dear Colleague” letter that pledged opposition to all judicial nominees. Yet, since posting, only four more clearly subscribed to the promise. Most of the signers — Alabama’s Tommy Tuberville, Florida’s Marco Rubio and Rick Scott, Kansas’ Roger Marshall, Missouri’s Josh Hawley and Eric Schmitt, Ohio’s JD Vance, Tennessee’s Marsha Blackburn, Utah’s Mike Lee, and Wisconsin’s Ron Johnson, later joined by Iowa’s Joni Ernst, Kentucky’s Rand Paul, Montana’s Steve Daines and Tennessee’s Bill Hagerty — have rarely voted for President Joe Biden’s nominees anyway, and none favored the jurists confirmed in September.
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When proposing Senate action that can threaten far-reaching effects, supporters must provide convincing substantiation. However, the pledge at issue here was seemingly based on partisan contentions with negligible foundation. The letter primarily supplied political rhetoric: Because the “White House has made a mockery of the rule of law and fundamentally altered our politics in un-American ways, as a Republican Conference, we are unwilling to aid and abet this White House in its project to tear this country apart, [and we shall] not vote to confirm [Biden] judicial appointees.”
The effort could have imposed deleterious real-world consequences. This endeavor apparently contravenes the oath of office whereby senators solemnly promise to uphold the Constitution’s express mandate that the president “shall nominate, and by and with the advice and consent of the Senate shall appoint” judges. Moreover, the pledge initiative seemingly violated Senate rules, norms and customs. The action concomitantly had detrimental effects, particularly in “red” states that a pair of GOP senators represent, by depriving courts, jurists, staff, litigants, counsel and the residents of resources the courts need to promptly, inexpensively and fairly resolve lawsuits.
Missouri’s experience is symptomatic. The apparent lack of collaboration among Biden, Hawley, a Judiciary Committee member, and Schmitt left the Eastern District’s four current openings without nominees. This has reached emergency status because of the prolonged length of the vacancies and/or substantial caseloads. Texas has five current and two future trial level vacancies without nominees, three of which constitute emergencies. Florida also must remedy three current and one future district openings; three comprise emergencies yet lack nominees and the future vacancy has a nominee whose confirmation process the Florida senators delayed by failing to return her mandatory “blue slip.” (In fairness, the Texas and Florida senators previously cooperated to appoint four jurists in each state).
The GOP initiative might discourage talented nominees and candidates, who warrant evaluation on the merits but are forced to place careers and lives on hold when being considered for appointment. This could dissuade highly qualified individuals from contemplating bench service. Finally, the GOP action will undermine careful endeavors to improve selection and exacerbate the troubled process by compounding the strident politicization that characterizes the relentless “confirmation wars.” Indeed, that dynamic might threaten President-elect Donald Trump’s confirmation efforts.
Accordingly, GOP senators must keep repudiating this plan, as they seemingly did in September. The proposal could undercut the selection process and the federal courts. Those senators must collaborate to fill many empty posts across the nation for the good of the Senate, the courts, jurists, litigants, staff, practitioners and constituents in the lame duck session and the next Congress.
Carl Tobias is the Williams Chair in Law at the University of Richmond.
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