It’s the last week of August, and just as millions of kids around the country are zipping up their backpacks for the first time in many months, so too the Senate will be preparing to come back into session after Labor Day. Between the political conventions, religious holidays, and Senators’ desire to campaign in their states before the November elections, there’s not much time to actually conduct the people’s business in September. But there’s a lot to do.
One must-do priority is confirming the backlog of judicial nominees – and if longstanding Senate practices were followed, this could be accomplished quickly and easily. Right now, there are 18 nominees to federal district courts around the county who have been approved by the Senate Judiciary Committee and are simply waiting for a vote to be scheduled. It may come as a surprise if you’ve been watching Congress lately, but the Senate could confirm all of these nominees in a block, in a single scheduled vote. Indeed, as Senator Patrick Leahy, Chair of the Senate Judiciary Committee, has reminded us in recent months, the Senate routinely used to vote on groups of nominees, as many as 18 at a time.
Given that the number of judicial vacancies is close to 80, it’s imperative for the Senate to take quick and meaningful action on district court nominees in September. This case is even more compelling, given the fact that a minority in the Senate has unilaterally decided that no more court of appeals nominees will be confirmed until after the election. Shockingly, Robert Bacharach, a nominee to an Oklahoma seat on the Tenth Circuit Court of Appeals with bipartisan support (including that of his home-state Oklahoma senators), was filibustered the last week of July. In addition to Judge Bacharach, Patty Shwartz, nominated to a New Jersey seat on the Third Circuit Court of Appeals, William Kayatta, nominated to a Maine seat on the First Circuit Court of Appeals, and Richard Taranto, a well-regarded practitioner nominated to a seat on the Federal Circuit, are not expected to receive September votes despite their own excellent qualifications and broad-ranging support. Although some Senators in the minority have suggested that it might be possible for these nominees to get votes after the election, this needless delay adds insult to injury to the millions of Americans who have been waiting – in some cases for years – for those important seats to be filled.
But since the door is still open for the 18 district court nominees to get votes in September, those who care about justice for millions of Americans around the country hope for significant progress on filling district court vacancies – even as they expect it to happen one painful vote at a time.