What Happened to those Lapsed Nominations?

The Senate adjourned its 2018 session last week without voting on 70 pending judicial nominees. As sessions of a Congress close, nominations typically expire, per the body's rules.

In this case, Rule XXXI governs, stating:

6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

Ordinarily, this is just a procedural hiccup in the process, and nominations are routinely returned to the president at the end of sessions and then renominated in short order. But a week after the end of the 115th Congress, these names haven't been sent back to the Senate yet (a plausible explanation for the delay is below).

By my count, out of the 12 lapsed court of appeals nominations, 6 already had hearings before the Judiciary Committee and are just awaiting committee and floor votes. The other 6 will need hearings and votes, and 5 of them will likely experience some sort of delay due to blue slip issues. The nominees to the Second Circuit, Michael Park and Joseph Bianco, appear to have problems getting past Minority Leader Chuck Schumer, who will likely try to pull all kinds of procedural tricks out of his hat to stall business on the floor in protest of the consideration of those nominations. The Ninth Circuit trio from California will likely have similar issues getting past Sens. Dianne Feinstein (who has seniority and is the committee's ranking member) and Kamala Harris (who's running for president). D.C. Circuit nominee Neomi Rao will have an easier time, as the District of Columbia doesn't have senators and thus lacks blue slips, as well.

56 district court nominees lapsed as well, and 48 of those had hearings and simply need votes. 8 also are waiting on hearings, but some of these nominees likely won't be renominated, which I'll cover below. The 2 Court of International Trade nominees also only need votes in committee and on the floor for confirmation.

The first few hearings this year will likely clear up this backlog of pending nominations, and with the newly expanded White House Counsel's office (Kate Todd is leading the nominations department) we can likely expect some more nominations to fill the ever-growing number of judicial vacancies in the near future.

The Fate of Thomas Farr, and Other Nominations like His

Earlier this week, the Raleigh News & Observer reported on a meeting that Sen. Lindsey Graham (R-SC), the new Chairman of the Senate Judiciary Committee, had with the White House Counsel's Office to discuss what to do with some controversial nominees whose chances for confirmation are slim. The White House might be waiting to send nominations to the Senate until it has finalized all of the names in the package. I have a few ideas for who was discussed:

1. Thomas Farr: Being the subject of the article, Farr was likely one of the main reasons for the meeting to happen. He has a complicated history, first being nominated in December 2006 by President George W. Bush, after the Senate had flipped to the Democrats in the midterms and the lame duck session was almost over. He saw no progress the first time around. The seat Farr has been nominated to fill is now the longest-running vacancy in the country, opening up in late 2005. After Farr's first nomination failed and Sen. Elizabeth Dole (R-NC) lost reelection, the North Carolina Senate delegation was split and could not agree on a name to fill the vacancy. President Obama put forward two nominees who went nowhere, and now, with the delegation again having two Republican Senators, Farr was renominated in July of 2017, had a hearing later that year, and has been reported on party-line votes twice since then. The Senate attempted to confirm Farr late last year, but after a vice presidential tie-breaker on a cloture motion regarding his nomination, no confirmation vote ever happened due to Sen. Tim Scott (R-SC) withdrawing his support. Scott had issues with Farr's alledged involvment in the 1990 Jesse Helms' campaign activities of African-American voter intimidation. 
2. Gordon Giampietro: Nominated to the Eastern District of Wisconsin in December 2017, he initially had no issues with his nomination, having been cleared by the bipartisan Wisconsin nominating commission. But then a history of controversial statements emerged, and Giampietro’s nomination was put on the backburner after Sen. Tammy Baldwin announced her opposition. The White House was in a holding pattern until after the elections to see if Baldwin would be defeated, but she survived and now Giampietro’s nomination is stalled for the foreseeable future.
3. Jon Katchen: Tapped to fill the vacancy on the District of Alaska in April, Katchen reportedly withdrew his nomination in August due to having concerns about delays in the confirmation process. But alike the Ryan Bounds nomination (he’s discussed below), the White House didn’t officially withdraw the nomination from Senate, leaving him in limbo for months and making me believe that his nomination might be on life support, but is still alive. 
4. John O’Connor: O’Connor was nominated to fill a vacancy covering all three Oklahoma district courts back in April. After his hearing before the Judiciary Committee, the American Bar Association rated him unanimously “not qualified”. He never received a committee vote, likely due to questions of whether he had enough support for confirmation. The state's senators still support O’Connor, so his renomination is nevertheless possible.

Bonus pick: Ryan Bounds. Bounds was nominated to fill an Oregon seat on the Ninth Circuit back in September 2017, had a hearing in May 2018, was reported out in June, and had his nomination withdrawn in July. Sen. Tim Scott also caused the demise of this nomination, as after voting to invoke cloture, he then stated he was not able to support the nominee. Bounds made some racially-tinged remarks as a school newspaper writer at Stanford, and a likely strike against a hypothetical renomination is that those articles are not going to disappear overnight. But Law360 reported that Bounds was meeting with GOP senators after the midterms to discuss a redo. With the expanded GOP majority, his confirmation would be more feasible, but still not on solid footing.

We can likely expect renominations of the returned nominations early next week, and depending on whether the nominations I list as being in danger appear in the group, draw the appropriate conclusion.