Senators should not start planning for an August recess. They should refrain from buying airplane tickets. There should be one thing and one thing only on the docket in August — confirming judges.
With a divided Congress, nobody should be surprised that little legislation is moving. What is moving – albeit slowly – are judicial confirmations. I say slowly because the 118th Senate did not confirm a single judge until Feb. 9 and is averaging just 1.47 confirmations per week. That pace will certainly not allow the filling of every federal vacancy before the end of President Biden’s current term.
The relative meager pace might be all well and good if the Senate were also knee deep in legislation that had a fighting chance of passing. It’s not. Confirming judges is arguably the most productive and impactful thing the 118th Senate can do.
The slower pace of confirmations has been in part due to attendance. Multiple senators have been and are out for valid medical reasons. In a chamber of 100 people, there are bound to be absences. But absences are making it harder to move judicial nominations, including through the Senate Judiciary Committee and on the floor. This partly explains why there have been only three confirmations in the past five weeks, despite the Senate proving itself capable of confirming as many as seven judges in a single week.
Medical absences are more reason why senators should be planning now to spend August in D.C. August is the best opportunity to make up the lost weeks from these past few months. It’s also a safe bet that there will be a few more weeks between now and August when attendance will be poor, leaving more judicial nominees waiting to be confirmed.
Last year, the Senate had a similar opportunity to cancel its August recess and confirm judges. It chose its recess instead, perhaps more understandably because it was an election year. It had another opportunity to prioritize judges during the lame duck and again kept judges on a back burner by confirming only 13 in two and a half months. This left a large backlog of judicial nominees to greet the 118th Senate, which it still has not gotten through.
Unlike last year, no senator needs to rush home this August to campaign for a November election. And unlike the lame duck, there will not be a slew of viable legislation to move across the finish line and distract from judicial confirmations.
In contrast, most of next year, 2024, will be more of a juggling act as many senators try to spend as much time in their states and on the campaign trail as possible. That means confirming judges must be the focus of every single month of 2023 — including August.
When President Obama left office in January 2017, he left more than 100 vacancies unfilled and over 50 judicial nominees on the table. President Trump and Sen. Mitch McConnell (R-Ky.) immediately went to work filling those vacancies and prioritizing the courts for four years straight. One of the ways McConnell did this was by canceling August recess in 2018 — an election year no less.
Nobody knows what the outcomes of the 2024 presidential and Senate elections will be. Leaving even a single judicial vacancy unfilled risks having it filled by the next administration. And with the likes of Judge Matthew Kacsmaryk, who issued an unabashedly partisan decision this month seeking to suspend the Food and Drug Administration’s (FDA) long-standing approval of one of the two drugs most commonly used in medication abortions. The decision was stayed in part by the Fifth Circuit and is likely destined for the Supreme Court. Kacsmaryk has become conservative litigants’ favorite and most sought after judge because of his readiness to issue sweeping decisions untethered to the law and precedent, like this most recent one. He is a stark warning of the consequence of leaving judicial vacancies unfilled.
Kacsmaryk was nominated in 2017 to fill the seat previously held by Judge Mary Lou Robinson, who took senior status back in February 2016, nearly a full year before President Obama left office. In 2016, Obama had a Senate that was openly hostile to his efforts to fill judicial vacancies. Recall the Senate hijacking Justice Antonin Scalia’s seat on the Supreme Court and denying then judge Merrick Garland so much as a confirmation hearing. President Biden and the 118th Senate are not in that position. This Senate is willing and able to confirm judges; it’s just not doing it fast enough.
While the end of 2024 may feel a long way off, in political terms, it’s right around the corner. By the end of this year, campaigning in home states, either for senators’ own elections or in support of their presidential candidate of choice, will begin to take priority over senators’ day job in D.C.
Canceling the August recess is the bare minimum the Senate needs to do to prioritize judicial confirmations this year. The Senate Judiciary Committee also needs to scrap blue slips for district court nominees. And the Senate should allow multiple nominees to be considered simultaneously and reduce the floor time allocated to post-cloture debate of circuit court nominees.
When the Senate really wants to get something done, there also is a precedent for working weekends and full five-day weeks. Judicial confirmations should certainly qualify as something the Senate really wants to get done given the public statements of Senate Majority Chuck Schumer (D-N.Y.) and others in his caucus. When attendance is no longer an issue, longer work weeks should also be on the table to make up for lost time.
But at the least (the very least) the Senate should plan to spend August in D.C. And don’t worry about the August heat in D.C. Unlike the days of old when ice blocks were used to cool off the chamber, the Senate now has air conditioning.
Russ Feingold is president of the American Constitution Society and previously served 18 years as a U.S. senator from Wisconsin.