Three Days a Week

Senate Republicans consistently emphasized their performance confirming conservative judges in the months leading up to the 2018 midterm elections. Majority Leader Mitch McConnell, R-Ky., pointed to Democrats’ “historic obstruction” of President Donald Trump’s judicial nominees as the leading reason why Republicans deserved to retain control of the Senate in the 116th Congress.

Yet contrary to Republicans’ messaging outside of the Senate before and after the 2018 elections, Democrats have not been the primary reason why the confirmation process has slowed inside the institution over the last four years. The data suggests that Republicans have been unwilling to use the Senate’s existing rules and practices to make it harder for the Democrats opposed to Trump’s judicial nominees to obstruct them. Republicans have instead cooperated with Democrats to make the confirmation process convenient for all senators. That, in turn, has delayed the Senate’s efforts to confirm presidential nominations in the 115th and 116th Congresses.

The Data

When asked by Fox News in April 2018 how he responded to criticism of the Senate’s slow pace confirming Trump’s judicial nominees, McConnell answered, “I’ve processed circuit judges as rapidly as they have come out of committee. It has been my top priority.” In response, the anchor pressed the Kentuckian to be more specific about his plans to overcome Democrats’ resistance to promptly confirming Trump’s nominees. “You wouldn’t hesitate to make people work over the weekend if you don’t get the progress you seek?” McConnell answered emphatically, “Of course not…We’re going to grind through it. We’re going to get them all.” McConnell then again blamed the Democrats for the slow pace of the confirmation process. “Democrats do have an opportunity to slow the process. We are working hard to truncate that.”

Yet how McConnell manages the Senate floor suggests that Republicans are not working that hard to “truncate” Democrats’ ability to “slow the process.” If Senate Republicans were actually determined to confirm as many judicial nominees as possible over Democrats’ objections, it is reasonable to assume that they would have used the Senate’s existing rules and practices to highlight Democrats’ obstruction. It is also fair to think that Republicans would use the tools they have under those rules and practices to make efforts to slow the confirmation process as painful as possible for Democrats by keeping them in Washington to vote late at night and over weekends instead of allowing them to travel back home to campaign, raise money, and spend time with family and friends.

The data indicate, however, that McConnell has not managed the Senate floor as aggressively as he has claimed over the last four years.

115th Congress

In the 115th Congress, the Senate confirmed 2 Supreme Court nominees, 30 appellate court nominees, and 47 district court nominees. Senators approved Neil Gorsuch’s nomination to serve on the Supreme Court on a Friday. And they approved Brett Kavanaugh’s nomination on a Saturday.

But Gorsuch and Kavanaugh were exceptions to the norm. The Senate confirmed most judicial nominees when it was most convenient for all senators, including Democrats- Tuesday through Thursday. The Senate confirmed only 2 appellate court judges (7 percent of all appellate court judges confirmed in the 115th Congress) on a Monday. And it confirmed only 4 district court judges (8 percent of all district court judges confirmed in the 115th Congress) on a Monday. In contrast, the Senate confirmed 12 appellate court judges (40 percent) on a Tuesday, 4 appellate court judges on a Wednesday (13 percent), and 12 appellate court judges on a Thursday (40 percent). The Senate did not confirm a single appellate court judge on a Friday, Saturday, or Sunday in 2017 or 2018.

The same pattern is apparent in the Senate’s record confirming district court judges during the 115th Congress. As noted, the Senate confirmed 4 district court judges on a Monday (8 percent). In contrast, the Senate confirmed 13 district court judges on a Tuesday (28 percent), 9 district court judges on a Wednesday (19 percent), and 21 district court judges on a Thursday (45 percent). The Senate did not confirm a single district court judge on a Friday, Saturday, or Sunday in 2017 or 2018.

116th Congress

The Senate has confirmed 21 appellate court judges and 90 district court judges in the 116th Congress (as of June 8, 2020). The Senate has continued to confirm the overwhelming majority of judicial nominees Tuesday through Thursday.

The Senate confirmed 10 appellate court judges (48 percent of all appellate court judges confirmed during the 116thCongress) on a Tuesday, 7 (33 percent) on a Wednesday, and 4 (19 percent) on a Thursday. The Senate has not confirmed a single appellate court judge on a Monday, Friday, Saturday, or Sunday during the 116th Congress thus far.

The Senate confirmed 10 district court judges (12 percent) on a Tuesday, 52 (58 percent) on a Wednesday, and 23 (26 percent) on a Thursday. In a slight departure from its practice concerning appellate court judges, the Senate confirmed 2 district court judges (2 percent) on a Monday and 2 (2 percent) on a Friday. As in the 115th Congress, the Senate did not confirm a single district court judge on a Saturday or a Sunday.

Three Days a Week

As McConnell alluded to Fox News in April 2018, Senate majorities have the power to structure the confirmation process to their advantage. Notwithstanding Republicans’ continued complaints about Democrats’ obstruction of Trump’s judicial nominees, however, McConnell’s unwillingness to schedule votes at inconvenient times to make delaying the confirmation process harder suggests that Republicans are mostly responsible for the resulting slowdown in that process.

How McConnell has managed the Senate floor as majority leader over the last four years contradicts his commitment to senators in January 2014 to do things differently if Republicans won a majority of seats in that year’s elections. In a speech on the Senate floor, McConnell stated, “let me suggest that we need to learn how to put in a decent week’s work around here. Most Americans don’t work 3 days a week. They would be astonished to find out that is about it around here.” In his speech, McConnell acknowledged that “the power of the clock” was essential to forging an agreement between senators on controversial questions and to overcome obstruction.

But when it comes to President Trump’s judicial nominees, the data suggests that McConnell does not have a problem working three days a week.

Image credit: Pozdeyev Vitaly