When senators return Monday from the August Recess, they face much unfinished business. Essential responsibilities that the Constitution assigns the president and the upper chamber are judicial nominations and confirmations with Senate advice and consent, because federal jurists resolve critical disputes involving life, liberty, and core rights, while they enjoy life tenure, so judges can serve for decades after chief executives and senators leave office.
President Donald Trump realized success in nominating and confirming many circuit and district judges across his first administration. However, during Trump’s second term, he has encountered greater difficulty seating well-qualified, mainstream nominees. For instance, on Aug. 8, when senators recessed for summer break, “red” states experienced one future circuit vacancy lacking a nominee and one having a nominee, while one “blue” state faced an opening without any nominee. Red states confronted 14 current district vacancies, 11 lacking nominees, and six future openings without nominees. Blue states also met 11 current district vacancies absent nominees, and two future openings lacking nominees.
In mid-August, Trump employed social media for announcing his intent to nominate 12 red state district candidates: Trevor Pemberton in the Eastern, and Zach West the Northern, Districts of Oklahoma; Kyle Reardon for Alaska’s District; Courtney Coker in the Northern, and Richard Bennett the Southern, Districts of Texas; Daniel Ballou for Kentucky’s Eastern District; Brad Kelley and Peter Mansfield in Louisiana’s Eastern District, Robert Long for the Middle District of Florida, Phil Axt in North Dakota’s District, Jesus Osete for the Missouri Western District, and Samuel Adkisson in Tennessee’s Eastern District. Trump has yet to officially nominate any pick.
Upon senators’ Monday return, they will grant Ohio Southern District nominee Matthew Byrne cloture and confirm him on Tuesday. On Sept. 16, the Judiciary Committee will assemble a nominee hearing for the initial six candidates above, whom Democrats will comprehensively and carefully question. The following day, panel members will rigorously discuss and vote on Fifth Circuit nominee Anna St. John and Alabama Northern District nominee Gregory Cook, who fielded Democratic senators’ probing queries in their August 5 hearing.
Most August candidates appear qualified and seemingly possess conventional experience. Two August picks served as federal magistrate judges, three as state jurists, and two in state attorney, or solicitor, general offices. Some clerked for federal or state judges. However, a few were Trump’s personal lawyers. Moreover, a substantial number appear to be ideologically conservative. For example, they have opposed, and litigated against, reproductive freedom, encompassing abortion, and LGBT people’s rights, including marriage equality. August’s twelve picks are men, and one is a person of color.
In short, Trump 2.0 nominees and confirmees stunningly lack diversity vis-à-vis ethnicity, gender, sexual orientation, ideology, and experience. The confirmation timeline mirrors candidates’ place in the queue. Senators will confirm no August picks before October’s tentatively set recess to campaign, because Trump must officially name the aspirants, the Judiciary Committee needs to analyze them, convene hearings and markups, while nominees require floor debates, cloture, and confirmation votes. The Judiciary panel normally schedules markup discussions and votes four weeks after the hearing. This would be Oct. 15, which is two weeks later than the Oct. 1 date when the Senate is tentatively set to recess until after the midterm elections. The GOP can accelerate the markup by scheduling it for Oct. 1, but Democrats will oppose that. Republicans could also convene a Sept. 30 hearing for the remaining August nominees. However, senators will lack time to confirm those nominees before recessing to campaign, unless the GOP postpones the scheduled departure until late October, which seems improbable.
TRUMP IS TREATING A HEMISPHERIC WAR LIKE STREET CRIME — ISRAEL KNOWS BETTER
Trump’s August “nominee” social media postings suggest he is pursuing a last-minute strategy to limit red state vacancies before Democrats possibly secure a November chamber majority. Trump appears more likely to end red state openings before he fills blue state ones. These ideas mean a lame duck session will proceed after the midterm elections; indeed, the Senate’s tentative schedule includes one. Trump and GOP senators will maximize confirmations in that session. The tentative schedule has the lame duck commencing Nov. 16, breaking for Thanksgiving week, returning Nov. 30, and remaining in session until mid-December, when the 119th Congress will probably end.
That schedule will leave some time for hearings, markups, and cloture and confirmation votes, especially regarding August nominees. Confirming aspirants Trump nominates later remains unclear, partly because there could be 13 blue, and 20 red state vacancies, and blue state openings will prove more difficult to fill. Certain senators may not vote in the lame duck session, because of weather, election results, and other contingencies. However, Judiciary Chair Chuck Grassley (R-LA) has vowed to promptly move Trump nominees. These conditions suggest major temporal constraints will hamper Trump and GOP senators’ efforts to fill all vacancies by this Congress’s end. Indeed, the president and Republican senators can attain the greatest success by working cooperatively with Democrats, a strategy recent GOP behavior suggests will not materialize.
Carl Tobias is a University of Richmond Law Professor.