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Don’t Waste The Lame Duck: Confirm Trump Judges

In a recent article for The American Thinker, Mario Diaz noted that when President Obama left office, nine of the nation’s 13 appellate courts had a majority of judges appointed by Democrat presidents, compared to just one when he took office. President Obama, not President Trump, transformed the judiciary said Diaz.

We agree with Mr. Diaz that every day that the Senate does not act to confirm President Trump’s pending Mitch McConnellnominees is another wasted opportunity to address all 122 judicial vacancies. As of Mr. Diaz’s article, 63 of those vacancies are considered a judicial emergency by the Judicial Conference. This is a big problem in the abstract, just on numbers alone.

According to the Heritage Foundation’s Thomas Jipping, we are in the longest period of triple-digit judicial vacancies since the early 1990s, when Congress created 85 new judicial positions. More than half of the current vacancies are designated “judicial emergencies” because the positions have been open so long that they’re worsening judicial caseloads.

Jipping notes that the Senate has so far confirmed 84 judges in the 115th Congress; the average for presidents Ronald Reagan through Barack Obama at this point was 81. As a percentage of the president’s nominees, however, the current confirmation rate of 55 percent lags behind the past average of 74 percent.

Contra Chief Justice John Roberts’ comments to the effect that there is no such thing as an “Obama judge” Mr. Diaz noted that former President Obama, specifically looked for judges who looked beyond the law to empathize with certain classes of people, appointed a total of 329 judges, including four judges to the D.C. Circuit where now-Justice Brett Kavanaugh sat.

Senate Majority Leader Mitch McConnell insists he’ll move to confirm all President Trump’s judicial nominees by the end of the year to eliminate a backlog caused by Democratic delay tactics, however, by our count there are as many as 34 nominees still waiting to be confirmed after getting through the Senate Judiciary Committee.

And that doesn’t count those still awaiting their committee hearing.

In 2013, Democrats gave away the filibuster, the only sure-fire weapon for preventing confirmation of Trump judicial nominees. While they have been employing other tactics to make the confirmation process less efficient, a determined Senate majority can still make the 115th Congress a victory for an independent, impartial judiciary.

The problem for Majority Leader McConnell is that the GOP Senate “majority” hinges on anti-Trump Senator Jeff Flake, who has vowed to vote NO on all judges until he gets a vote on his clearly unconstitutional “Mueller protection bill.”

The hurdle of Senator Flake withholding his vote is a real one in the current Senate, where Republicans hold a one vote 51 to 49 majority and Flake is the one vote majority on the Senate Committee on the Judiciary.

But it is not insurmountable.

One possibility is for Senate Majority Leader Mitch McConnell to remove the retiring Senator Flake from the Senate Committee on the Judiciary and replace him temporarily with a sane member, Senator Tom Cotton of Arkansas comes immediately to mind.

Cotton would be there to vote Judicial nominees out of Committee and move them to the Floor for a vote, thereby keeping the process flowing right up to the end of the 115th Congress.

Naturally, such a move would infuriate Senator Flake, and undoubtedly lead to more destructive “NO” votes, but at 51 to 49, all tie votes would be broken by Vice President Mike Pence, who can be relied upon to vote “AYE” to confirm the all-important judges.

Of course, this will probably step on Vice President Pence’s hopes for a relaxing and enjoyable Christmas holiday season, but Pence, a solid cultural conservative, understands the importance of confirming conservative, originalist judges to the federal courts.

In 2014, when Democrats lost the Senate majority, Democratic Senator Harry Reid kept the Senate in session to confirm dozens of Obama-nominated liberal judges. Senate Majority Leader Mitch McConnell has said he will do the same and move to confirm all President Trump’s judicial nominees by the end of the year to eliminate a backlog caused by Democratic delay tactics.

“We are not going to leave any judges behind at the end of the year, when we get through this Congress,” McConnell told the Washington Examiner.

We urge Senator McConnell to follow through on that commitment and to use whatever tactics are necessary to get those judges confirmed, even if it means sidelining Flake and putting the heat on any other recalcitrant members of the Senate’s Republican Conference.

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