By Natalia Castro
It is no secret the Senate is having trouble getting just about anything done these days, but their stagnation is preventing critical government positions from being filled by highly qualified nominees. The inactivity on judicial and executive presidential appointees requiring Senate confirmation is delaying one of the greatest assets the Republican party has with a majority in the Senate: the ability to fill the courts with constitutionalist justices who will enact the rule of law and follow through on President Donald Trump’s agenda.
Thus far, the greatest success of the Senate has been the confirmation of Supreme Court Justice Neal Gorsuch, but hundreds of judicial positions have yet to be filled due to the Senate and President Trump’s lagging.
Currently, the U.S. courts have a total of 138 vacancies; 20 from the US Court of Appeals, 110 from US District Courts, 2 from the US Court of International Trade, and 6 from the U.S. Court of Federal Claims.
This presents Trump with the unique ability to fill lower courts with constitutionalist judges, a once in a lifetime opportunity for presidents. Yet Trump has only nominated 24 judges to fill these vacancies, only 3 of which have been confirmed by the Senate.
On July 13, Trump announced his fifth wave of judicial nominations with 11 judges, sending a signal to the Senate that they must get moving, too.
Judicial activism has already plagued the Trump agenda and prevented crucial reforms from taking place, courts such as the 9th Circuit have released clearly biased decisions that undermine the rule of law. Trump and the Senate must nominate and confirm constitutionalist judges to reverse the chaos created by the Obama Administration.
The courts are not the only home to critical vacancies the President and the Senate must fill. Executive branch nominations must be moved forward to get lower level administrators in place.
By August recess in President Obama’s first term 53 percent of Obama’s nominations were confirmed; yet, with a clear Republican majority, the Senate has only confirmed 22 percent of those nominated to serve in the Trump Administration. That translates to only 50 of the 229 executive nominations Trump has made.
Without personnel in place to implement Trump’s agenda, the Senate is depriving the President the ability to execute his agenda.
Patrick Pizzella is the nominee for Deputy Secretary of Labor, and was unanimously voted into a labor position during the Obama Administration on a bipartisan basis. Yet Pizzella has been awaiting confirmation for well over a month.
In fact, the Senate has a list of hundreds of nominations in committee or waiting confirmation who are highly qualified and ready to enact the Trump agenda. However, the Senate is holding up votes to move these nominees forward, and wasting the taxpayers’ and administration’s time.
In the Department of Defense, 12 Pentagon officials have passed through the Senate Armed Services Committee and are simply awaiting floor action to be confirmed. The Washington Examiners Travis Tritten explains, “Without a coming together, the DOD picks could languish into the fall and leave top positions vacant or manned by Obama administration holdovers…The Navy secretary nomination is among the most crucial for the administration. Trump picked Richard V. Spencer, a financier and former Marine aviator, to be the service’s top civilian leader as the administration works to shore up depleted forces and prepares to expand the fleet from 276 to 355 ships in the coming years.”
Ultimately, there are over a thousand executive appointments which Trump will be making in the coming months. The Senate can get these done in batches on the floor or they can utilize their recess time to move a majority of these nominees to confirmation.
The Recess Appointments Clause in Article 2 Section 2 Clause 3 of the Constitution allows the President to confirm individuals while the Senate is on recess to prevent governmental paralysis.
While this would appear to give President Trump authority to move a significant number of the nominations to confirmations before the Senate returns Senate Democrats have already threatened to set up “pro-forma” sessions to stop their recess and black Trump’s nominees.
Keep in mind, former Senate Majority Leader Harry Reid (D-Nev.) was the first Senate Leader to use pro forma sessions to stop recess appointments. Senate Majority Leader Mitch McConnell (R-Ky.) would later adopt the same tactic. The rules can change, but it would require a majority vote on changing the rules, also known as the nuclear option.
Since this is unlikely, Senate Republicans must cancel their recess and utilize their majority to move the presidential appointees to confirmation. With a majority, there is no reason Republicans are so far behind previous administrations and no reason the Democrats should be able to stall recess appointments.
Establishing constitutionalist security in our courts and confirming executives who will follow through on Trump’s agenda is vital to the effective workings of the federal government. While the Senate takes a break, Trump must take charge, and when they return the two must work together to fill the remaining vacancies.
Natalia Castro is a contributing editor at Americans for Limited Government.
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