Senate Majority Leader Mitch McConnell (R-KY) indicated in an interview with radio host Hugh Hewitt on Thursday that no federal appeals court judges — or, for that matter, Supreme Court justices — will be confirmed in the coming year. In response to a question about judicial confirmations, McConnell told Hewitt that “so far, the only judges we’ve confirmed have been federal district judges that have been signed off on by Republican Senators” (district judges are the lowest rank of federal judges under Article III of the Constitution). When Hewitt followed up by asking if McConnell believes this pattern will continue for “the balance of the session,” the majority leader replied “I think that’s highly likely, yeah.”
The term “session” refers to a one-year period of congressional business.
If McConnell carries out his threat to confirm no appellate judges in the next year, that would be an extraordinary departure from prior practice. According to the Federal Judicial Center, the Senate confirmed six appeals court judges in President George W. Bush’s seventh year in office, despite the fact that the Senate was controlled by Democrats. Presidents Clinton and Reagan also spent their seventh year in office in a period of divided government when the opposite party controlled the Senate, and yet the Senate confirmed 7 appeals court judges during that part of the Clinton presidency and it confirmed 10 appeals court judges during the same period in the Reagan presidency.
This is not the first time McConnell has moved the goalposts on judicial confirmations. In 2012, for example, when President Obama was up for reelection, McConnell announced that he would attempt to block all appeals court confirmations under the so-called “Thurmond Rule.” The Republican leader claimed that this rule “holds that within six months of a presidential election, the opposition party can, and typically does, refuse to allow votes on circuit court judges.”
No such rule exists. Although the “Thurmond Rule” has, at times, been invoked to slow down confirmations in a presidential election year, prior Senate practice does not support McConnell’s claim that confirmations should simply halt. As we explained shortly after McConnell announced that he was invoking this so-called rule, “President Carter had 5 appeals judges confirmed between this day in 1980 and that year’s election, one of whom was future Justice Ruth Bader Ginsburg. President Reagan had 7 in his first term and 2 in his second. The first President Bush had 7. No appellate judges were confirmed in the lead up to the 1996 election, but one was confirmed at the end of President Clinton’s second term. The second President Bush had 3 confirmed during this period in 2004 and 2 in 2008.”
On Saturday, a McConnell spokesperson walked back McConnell’s statement to Hewitt slightly. Though spokesman Don Stewart claimed that “there’s not a shutdown” of appeals court confirmations, he added that the Senate “probably will have a circuit court nominee” — and apparent indication that it is likely, but not certain, that the Senate will at least confirm a single federal appeals court judge in by the end of the session.