Non-Controversial Judicial Nominee Stalemate Worsens,Turning Conventionality Upside Down
By Scott Crass
In a recent interview with the “Salt Lake Tribune,”Michael McConnell of the Stanford Constitutional Law Center asserted that “an unusual degree of unanimous support” typically leads to Judicial confirmations well into an election year. Unfortunately for advocates of rapid justice hoping to change the pace by which the Senate is confirming Judicial nominees, he is not the McConnell that counts.
It’s been more than one month since Senate Republicans, led by Minority Leader Mitch McConnell, have vowed to invoke the ”Thurmond Rule” on Judicial nominations, which essentially defers Circuit Court nominations until after a Presidential election. That has certainly succeeded in stalling the four nominees who have been pending for some time. But Republicans also said that they would not begin blocking the confirmations of District Court nominees until September. So it is a little bemusing that only four Judges have been confirmed since the GOP stated their intentions.
To hear the official Republican reasoning is darn laughable. Charles Grassley, the ranking GOP member on Judiciary, blames the slowness of confirmations on the fact that President Obama has yet to fill other Judgeships. He also says his counterpart on Judiciary, Pat Leahy, has moved slowly toward holding hearings for nominees, even though Leahy has been the Senate’s most vocal and stern critic of the nomination process. But, that aside, let’s look at the facts, shall we?
There are currently 17 District Court nominees that are pending on the Executive calendar, which means that their nominations have already been reported favorably out of the Judiciary Committee. Almost none of these nominations have been controversial, and all emerged with nearly unanimous support from members of both parties on the committee. Ironically, the most fierce questioning actually came from a Democrat, Dianne Feinstein, who hit Pennsylvania nominee Thomas Manion over his ties to the Pennsylvania GOP and the NRA).
In other words, the only thing that stands in the way of confirmation is a simple up or down vote. So Grassley’s reasoning for not confirming an abundance of nominees is that the President hasn’t filed a handful of others? Absurd Those frankly are talking points for folks not paying attention.
Take last week’s confirmation of Kevin McNulty. The GOP relented and allowed a vote on his nomination, which ultimately sailed through the Senate on a 91-3 vote .But that was after a seven month process, which actually makes McNulty one of the more fortunate nominees. McNulty’s fellow New Jerseyan and would-be colleague, Michael Shipp, (who hails from my home town though, I don’t know him), nominated just one month later, was not given such a courtesy, leaving Majority Leader Reid to file cloture on his nomination late last week. The vote is scheduled for when the Senate convenes later today.
The invoking of cloture on Shipp, followed by a swift confirmation vote is likely. But why should the Senate have to risk a filibuster every time Reid brings a nomination to the floor, particularly ones that are non-controversial and have been pending for some time?
Further, as gratified as I am that my beloved “Garden State” is getting two judges (though we’re still waiting for Circuit Court nominee, Patty Shwartz, who comes to the table the support of GOP Governor Christie, to get a vote), we are fortunate enough not to be suffering from a “judicial emergency.” Indeed, there are other district courts throughout the nation that have been declared as such, which means the case load is so backed up that justice cannot be administered without major delays.
The Utah district court was the latest to be declared a judicial emergency, the 31’st such in the nation. A nominee is in place, ready and wiling to serve. But there is no timetable on the vote for Robert Shelby. Ditto for Michael Shea of Connecticut and Gonzalo Curiel of California. All three hearings were held simultaneously on March 28 and all made it through with flying colors. What abou Brian Davis, the Florida Middle Court nominee who has the glowing support of GOP rising star Marco Rubio, but not Grassley? Other nominees from California and New York were just reported last week. Will they even get a vote in September? History suggests they surely should.
Glenn Sugameli of “Judging the Environment” cited to the “Tribune” 10 nominees confirmed via consent in September of 2008, adding that “clearly there can be, should be and has been Senate action in presidential years to confirm consensus nominees well into September.”
There are two judicial emergencies for the Florida Circuit Court and two nominees who’ve been reported out of Judiciary. California’s four district courts have eight emergencies. And the Middle District of Pennsylvania has two Judicial emergencies, and get this, two nominees who have been reported and agreed to by the Commonwealth’s two Senator’s, Bob Casey, a fairly liberal Democrat, and Pat Toomey, a very conservative Republican.
Here is where Senate Democrats, particularly Majority Leader Reid, need to advance the ball. It is true, that, the intricacies of scheduling votes is wide and deep. In order to fast-track nominees for votes, both party leaderships must agree to place them for a vote as unanimous consent. Because the parties have been reaching just one consent per week, nominations are moving at a snails pace.
Consent comes only after both Senate leaders consult their caucuses. If most members are okay with it, consent will proceed. Because the parties have been reaching just one consent per week, nominations are moving at a snails pace. But Reid has another weapon: the bully pulpit of the Majority Leadership. In March, he threatened to tie the Senate up by placing 17 Obama nominees on the agenda, which both parties realized would’ve bogged the Senate down for days. That created a eureka moment. Reid&McConnell agreed to bring up 14 of those nominees within 6 weeks.
Democrats may be banking on a strategy to get nominees confirmed en-masse, but it is a risky one. Prior to lengthy recesses, it is typical for both parties leadership to clear nominations of all kind by voice vote. The problem with that is it simply takes a single Senator to object, meaning, a nominee is right back where they started. And while Judicial nominations is by no means the only pressing business the Senate has on it’s plate,
So while the Republicans are wrong to imply that they won’t confirm some judges until others are nominated, they do have a point that they can’t vote on nominations that haven’t been brought up. That said, if Reid were to simply schedule floor votes, with both sides getting a half hour for debate, the likelihood of them being filibustered is low. Bringing up the Shipp nomination this afternoon was a start. But in order to move the process along as intended, Reid must continue on that path.
I will say one thing. I’m not sure whether the President putting forth the same folks for the DC Circuit Court that failed to get enough votes for cloture last time out is really the way to go. Perhaps he should admit defeat on that one. And yes, there are some slots that are vacant that he has yet to fill. But given the speed, does it really matter?
Finally, let’s address the matter of the Circuit Court nominations, which the GOP has vowed to block as part of the “Thurmond Rule.” But three in particular, While Maine’s Susan Collins is arm-twisting colleagues for a vote on the home-state nominee she strongly supports, William Kayatta,
Oklahoma’s two Senators, Jim Inhofe and Tom Coburn, have been more circumspect. Both back Bacharach’s confirmation, with Coburn calling the process “stupid,” but have done little to press leadership for a vote since the “Thurmond Rule” was enacted.
That drew notice from Oklahoma’s lobbyists to the American Bar Association, who penned a letter to the duo urging them to fight to secure Bacharach’s confirmation. While acknowledging “stalling tactics” by both parties in the past, they asserted “it ignores the fact that this Oklahoma slot on the Tenth Circuit has now been vacant for over two years.”
As Nina Totenberg wrote recently for NPR,”In the current environment, however, past is rarely prologue.”
Insanity is defined as doing the same over and over again and expecting a different result. This is something that has not been tried. And I’m still trying to figure out why? What’s the logic? Most of these folks will ultimately be confirmed with flying colors anyway, even with the lateness of the calendar. Senators obstructing the process should be given one simple message: stop. The Senate has a Constitutional obligation to advise and consent. It’s something that few realize exist,but it is fundamental to the thousands of Americans who utilize the court system rely on each day.
Justice delayed is indeed justice denied.