New Congress likely to resume torrid pace of judicial confirmations

The fight over Supreme Court Justice Brett Kavanaugh’s confirmation became an issue in this fall’s elections. But Republicans maintained control of the Senate, making confirmatino of more of President Donald Trump’s judicial nominees likely next year. (Photo by Cronkite News)

WASHINGTON – Democrats are gearing up for change in Washington after their surge in the midterm elections, but there’s at least one area where Republicans will still hold the upper hand – judicial nominations.

Democrats will control the House come Jan. 3, but Republicans actually widened their lead in the Senate. That all but guarantees that the 116th Congress will keep up the torrid pace of confirmations for President Donald Trump’s judicial nominees next year.

“We’re going to start over in 2019, and if you like (Supreme Court Justice Brett) Kavanaugh, there’s more coming,” Sen. Lindsey Graham, R-South Carolina, told reporters toward the end of a Mississippi campaign rally with Trump last month.

At stake are 143 openings on federal courts across the country, including three on the U.S. District Court for Arizona and six on the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Arizona and eight other states.

It’s likely to continue an impressive streak for the president and the GOP-controlled Senate, which has confirmed 83 Trump nominees already, including Kavanaugh and fellow Supreme Court Justice Neil Gorsuch.

Even though Arizona will have its first Democratic senator in 24 years when Sen.-elect Kyrsten Sinema is sworn in, legal experts said she will have little effect on Trump’s ability to install his nominees on the federal bench in the state.

“Sometimes senators from the other party would have a lot of authority in judicial nominations,” said Paul Bender, a law professor at Arizona State University’s Sandra Day O’Connor School of Law. “But I have a feeling that’s not happening that much anymore, that it’s all turned, not all but almost all, to the White House.”

The biggest roadblock to Trump’s judicial nominees since the election has not been a Democrat, but Arizona Republican Sen. Jeff Flake. He vowed to vote against any nominee until Senate leaders allowed a floor vote on a bipartisan measure he co-sponsored that would prevent the White House from interfering with Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 election.

With Republicans holding a one-vote majority on the Senate Judiciary Committee, Flake’s threat has been enough to delay votes on at least 22 nominees for three weeks so far, with time running out on the current Congress. But with Flake leaving after this Congress, the confirmations could pick back up in January.

Included in the judges whose nominations have been put on hold are Bridget Bade of Arizona and Eric Miller, both nominees to the 9th Circuit. They are two of five nominees Trump has forwarded for the six openings on the circuit court.

Some judgeships on the 9th Circuit have been vacant for as long as three years, back from when the Senate was slow-walking nominees in the last years of Democratic President Barack Obama’s administration.

Eric Miller, a 9th U.S. Circuit Court of Appeals nominee opposed by tribes, is one of many whose confirmation votes stalled. (Photo by Daniel Perle/Cronkite News)

“There really wasn’t anything happening in Obama’s last year,” said Paul Eckstein, a Phoenix-based lawyer with Perkins Coie. “Republicans were in control of the Senate and they weren’t approving any Obama nominations, or if they were it was very few.”

Trump has not yet nominated anyone to fill the three vacancies on the U.S. Distrct Court for Arizona, even though the Judicial Conference of the United States said filling the seats of Judges Cindy K. Jorgenson and David G. Campbell was a judicial emergency, after those two took senior status earlier this year.

Sinema could be expected to have more input on a home-state judgeship, but Eckstein said the administration will likely work around her.

“The governor of Arizona has some juice, I think, with the administration,” Eckstein said. “Every district … needs district court judges, they’re (district judges) all working quite hard so they’ll do it very promptly.”

Eckstein said the FBI has already come to Phoenix to start vetting potential judges, background checks that he said typically last two months before a president nominates a nomination.

As for how long it takes from nomination to getting a confirmation vote in the Senate, Eckstein said it can be a “matter of weeks, or a matter of a long time.”

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