Mitch McConnell just came out and announced that the Republican minority in the Senate will filibuster every single cloture vote on circuit court judges from now until after the presidential election. Worse, he falsely claims that it is routine to not have votes on circuit court judges within six months of a presidential election. But he’s full of it.

According to data from the Federal Judicial Center, 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.

The only time this was done before was…you guessed it…in 1996, when Clinton was running for reelection. In the five terms served by the three most recent Republican presidents, there wasn’t a single term when the Democrats refused to allow votes on circuit judge nominations.

Let’s look a the vacancies on the circuit courts of appeal.

First Circuit: 1 vacancy
Second Circuit: 0 vacancies
Third Circuit: 0 vacancies
Fourth Circuit: 1 vacancy
Fifth Circuit: 1 vacancy
Sixth Circuit: 0 vacancies
Seventh Circuit: 1 vacancy
Eighth Circuit: 0 vacancies
Ninth Circuit: 1 vacancy
Tenth Circuit: 2 vacancies
Eleventh Circuit: 1 vacancy
DC Circuit: 3 vacancies
Federal Circuit: 1 vacancy

That’s 12 total vacancies. Only four of our thirteen circuit courts of appeal are fully staffed. In January of 2011, Chief Justice John Roberts complained that there were a total of 96 federal judgeships vacant, a number that included the district courts. The number today is seventy-four, with 33 pending nominations. I suggest that Obama threaten to make at least 33 recess appointments, if not the 74 needed to fully staff our judiciary. And, yes, it can be done.

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