Judicial Restraint Doesn’t Mean Halting Confirmations (Guest Voice)
Judicial Restraint Doesn’t Mean Halting Confirmations
by Scott Crass
It will surprise no one who has a remote understanding of Congress that a number of measures routinely become bogged down. Currently, the list includes a must-have transportation bill, a major farm bill, immigration reform, and numerous spending measures. And the list goes on and on.
Until early last year, nominations to federal and district courts had been going down that same long and winding road. The nation’s most deliberative body would deliberate without even doing so, as stalling tactics would prevent the nominations from reaching the floor at all, for no apparent reason other than to slow the process.
That was until both parties agreed to move along nominations at a faster, albeit by no means expeditious rate. It was a rare area of comity. For one brief, shining moment, at least.
Last week, the Senate Republican leadership made clear that this would stop real quick. While saying they would continue to allow district court nominations to move forward, Senate Minority Leader Mitch McConnell vowed to invoke the” Thurmond rule,” a clause put forth by the late South Carolina Senator Strom Thurmond that is designed to kick in six months before a Presidential election. It mandates approval of both partisan chamber leaders, along with Senate Judiciary Committee’s Chair and ranking member before a nominee could be brought to a vote.
Many of McConnell’s GOP colleagues hailed his move. But Democrats, legal scholars, and many advocates of the courts blasted it.
The motivation behind the “Thurmond Rule” is clear cut. The party out of power, hoping their standard bearer will win the White House, sees little incentive to have the other party making further dents on the respective benches. But in this case, there are only five nominees pending on the Executive calendar (awaiting floor action), and they’ve all cleared the Judiciary Committee with near unanimous votes.
Further, while there may very well be a President Romney, his term would not commence until January 20, a full seven months from now. Even if Romney were to submit his own nominees immediately upon taking the oath (which wouldn’t likely be his first order of business), the confirmation timeline would surely add an additional couple of months to the process. That said, why should benches that already have been declared “Judicial emergencies” for high case backlogs be forced to wait an additional 9 months?
Some including the top Republican on Judiciary, Chuck Grassley, are unmoved. Grassley has openly questioned why the “Thurmond rule” wasn’t invoked sooner. The answer of why now appears to lie within the 9th Circuit Court, particularly the recent confirmation of Andrew Hurwitz.
The Ninth Circuit (which covers eight states including California , Arizona , Nevada , and Alaska )has typically been considered the nation’s most left-leaning court, and Democrats have focused on filling the vacancies which have resulted in a 14,000 case backlog. Since December, four vacancies to the 28 member court have been filled, leaving just one for which the president has yet to submit a nominee.
Among those confirmed: Jacqueline Nguyen, the first Asian-American to sit on a federal appellate court. Democrats also successfully pushed through Paul Watford on a vote of
61-34. Republicans abandoned a filibuster when they realized they lacked the votes. Morgan Christen was confirmed in December by a vote of 95-3.
Aside from these and several other controversial nominations (Jeffrey Helmick for an Ohio District slot)objections beyond more than a handful of “no” votes on any nominee – Circuit or District,were rare (Utah’s Mike Lee has made it a practice to oppose all Obama nominees in retaliation for the President’s recess appointment of Richard Cordray to the Consumer Protection Bureau).
Enter Hurwitz. Conservatives rallied hard against him for his service as an aide to the Judge who helped author Roe vs.Wade four decades earlier. They viewed him as too pro-choice. But Hurwitz’s home-state Senators, Republicans McCain and Kyl ardently backed his nomination, and a filibuster was broken by a single vote.
Hurwitz’ ultimate confirmation by voice-vote sparked a bitter reaction from Grassley, who said that he should’ve been notified that no floor debate would take place, even though the agreement that had been worked out between Reid and McConnell fell to the responsibility of his caucus to inform him. Nevertheless, the sleeping lion was unleashed and McConnell revealed his plans two days later.
While Republicans have said that District Court nominees wouldn’t be subject to the “Thurmond Rule” until September, it hasn’t been all sunshine and lollipops with those confirmations either. A mere 41 nominees had been confirmed between the time Obama had first taken office, until the lame duck session commenced after the 2010 elections, well below the 80 approved prior to Bush’s first midterm. At that time, nominations began picking up the pace, not nearly with an ideal pace, but quickly enough for all sides to declare progress.
The puzzle is thus. Typically, non-controversial nominations are passed by unanimous consent, which in essence is a glorified term for a voice-vote. That takes a mere seconds. A handful of Judges were confirmed in that fashion in late 2010. But many had to wait 9 months. The issue is, if a single Senator objects, a roll call is in order, and many times, not a single Senator ultimately votes “nay.”
Even more perplexing, most of the nominations have been cleared routinely and unanimously by the Senate Judiciary Committee. The few Senators who plan on voting “no” on a particular nomination have zero intention of mounting a filibuster, knowing full well
That passage is assured. So the question is, why bother holding them up weeks and in most cases, months?
Republicans say the timetable of the “Thurmond Rule” fall along the same parameters used during the 2004 and 2008 election years. They say they have confirmed more circuit nominees than at this point in the ’04 and ’08 elections. But the vacancies — and with it the “judicial emergencies” are higher. Back then, the vacancy rate was roughly 6%. Currently, it sits at 9.2%.
The 11th Circuit Court (Alabama, Florida ,and Georgia )have seven “emergencies” and one on appellate. 4 nominees have been in place for months. Most would likely be confirmed without a hitch. If only they can proceed.
Texas Democratic Congressman Lloyd Doggett recently told constituents that “empty robes jeopardize our judicial system and filling them must be a higher priority.”
In March, an exasperated Harry Reid threatened to tie up the Senate floor unless 17 long-pending nominees were confirmed. An agreement was ultimately worked out, though not without GOP insistence that the confirmations of 14 such nominees be conducted gradually through early May, rather than by unanimous consent (most were confirmed unanimously anyway).
McConnell’s remark at that time could well go down as amongst the worst talking points of the year. He called it,”a needless exercise and a waste of the Senate’s time because I assume these 17 people already have a job. What we’re worried about is all the people who don’t currently have a job who might in some way benefit from a jobs package.” Ugh, I beg your pardon, but isn’t there an issue of constitutional responsibility. What about fulfilling the duty of advise and consent. And what happened to the idea of walking and chewing gum at the same time.
The GOP also has been attempting to place the blame on Obama, saying that there are many nominations that he has not yet filled. In particular, there are four slots in Texas for which the President has yet to submit names. One could question whether the confirmation rate would pick up if more nominations were made. But on it’s face, that reasoning is beyond farcical. To argue that one batch of nominees can’t be confirmed because there hasn’t been another batch submitted? What kind of nonsense is that?
Whether the few Circuit Court nominees that have been cleared by committee are truly dead remains to be seen. Take Robert Bacharach, Obama’s nominee for the Tenth Circuit, which covers Oklahoma .
Obama had consulted with the state’s two Senator’s for well over a year until both sides felt comfortable with Bacharach. Achieving consensus with that duo, arguably the most conservative in the body, was considered monumental in itself, a fact Inhofe alluded too by quipping that “it is kind of rare that the Obama White House and I agree on anything.” But Inhofe called Bacharach, “a good man.”
Coburn for his part had sensed roadblocks within his party even before McConnell’s statement and warned Bacharach that his nomination might not see the light of day. He called the process
“stupid.” He was right.
Coburn&Inhofe continue to support Bacharach, with the latter telling “Politico” after McConnell’s comments he”like(s)him, I think he’s good, he’s acceptable.” Senate Judiciary Chair Leahy still vows to bring Circuit nominees to the floor.
If Coburn&Inhofe were to back Bacharach, along with the usual crop of GOP moderates who routinely side with Democrats on Judicial nominees( Snowe and Collins, Scott Brown, Lugar, Alexander, and Murkowski), they would likely find one more vote to reach 60 (as we saw with the Hurwitz and Helmick nominations, parochial concerns often trump partisanship, as Portman& Kyl said “yes” to one each).
And Snowe and Collins would have their own reason to side with Bacharach., as a fellow Mainer, William Kayatta is also among the Circuit Judges left in limbo. With the latter, New Hampshire ’s Kelly Ayotte might be key. She’s a social conservative, but the
“Granite State” shares the same Circuit as Maine .
At the very least, McConnell should relent to confirm the five Circuit nominees whose credentials have been vetted and approved by Judiciary. The same should apply to the District Court nominees. Reid for his part should’ve been scheduling more floor time for nominations pending on he Executive calendar. Many times, the last votes of the day have occurred before 1:00 PM. Why not have Senator’s stick around for an additional 15 minute roll call.
The current process is not how the Founding Father’s envisioned things. They did not expect nominees to be bottled up in perpetuity. Many, including ex-Senator Arlen Specter, have proposed limiting the confirmation process to two months.
I’m good with three. Whatever the case, the process must be short-circuited and it must be reformed. Because for millions of Americans, Justice delayed is truly Justice denied.
Scott Crass writes: “Punditry has long been my passion and I thrive on offering non-partisan commentary on upcoming elections with historical perspectives .From Maine to Maui, no election is too obscure and there’s not a character I don’t dissect. I call the races as I see them as I see them, even if it’s contrary to what I want to see happen. And for us political junkies and then some, it’s never too early. And if you can’t tell which side I’m on, I’m doing a heck of a job. Check out my analysis on twitter.com/crasspolitical.’