By Scott Crass
When I first contemplated writing this piece last week, my tone was going to be one of amazement, befuddlement, and even anger. The fact that Senate Republicans were still hell bent on preventing President Obama’s non-controversial Judicial nominees from reaching a vote even after the President won re-election was something I had neither envisioned, nor seen before in my lifetime. Last week, however, the GOP relented and did allow for ultimate confirmations on four of the nineteen Judges whose nominations had been approved by the Senate Judiciary Committee (the committee has since approved four others).
That’s a start.
We’ll see if most of the rest can be confirmed as the session drags to a close. But the progress is slow enough that many of my points still stand, and it bears mentioning that the public defenses/reasoning by the GOP is, to use a phrase newly prominent in the lexicon, “a bunch of malarkey.”
After the President’s re-election, I figured the first order of business, amid a plethora of monumental and laborious tasks to come would be confirming the nominees, most of whom have been pending on the Executive calendar since mid-year. Why not?
The election, presumably the reason the GOP had blocked the nominees in the first place, had ended, and many slots were reeling from emergencies. Tom Coburn, an Oklahoma Republican who had publicly bemoaned the process (before ultimately siding with his party in blocking a home-state nominee the legal community furiously lobbied him for), predicted that with the election over, the two Oklahoma nominees would “sail through.” But the players continued the blockades.
Enter Chuck Grassley. The Iowa Republican’s reputation for respect, trust, and consensus forging ability as Chair of the Finance Committee was legendary. Until President Obama took office that is. But I’ll save healthcare reform for another day. Grassley’s role as ranking Republican on Judiciary has made him even more of a pit bull — and that’s not a compliment.
First off, it begs mentioning that Grassley has been under fire from 16 Iowa legal groups urging him to quit dragging his heels on confirmation. Grassley’s attention to Iowa issues has made his popularity sky high and his re-elections uneventful but that has changed, and has not gone unnoticed (Grassley initially raised objections to an Iowa nominee, Stephanie Marie Rose, earlier in the year, though later dropped it).
If I hear Grassley cite the number of Obama nominees the Senate has already confirmed, or note that they’ve put through more of President Obama’s nominees than Bush’s, I’ll scream (possibly in a phone call to the Senate GOP Judiciary office).
After last week’s confirmations, Grassley noted that this is only the fourth post-Presidential election lame duck session where nominees were put through. Well the last one was in 2004, just after President Bush’s re-election. In 1984 or 1996, there were no lame-duck sessions. In fact, its existence prior to the legislative gridlock of the last 20 years were rare. And, “Justice Watch” notes that Grassley is playing loose with the facts, comparing Bush’s second-term confirmations to Obama’s first.
Grassley also turns to statistics. In a press release the day of the first vote, he said, “we have already confirmed 31 district judges and 5 circuit judges. That meets or exceeds the confirmations for presidential election years in recent memory,” adding,” that is more confirmations than we did in 2008.” So what?
Number one, the election’s over. That speaks for itself. As if it’s really even relevant. When courts are overloaded and subject to “Judicial emergencies,” the Senate should be voting on all of the nominees. When natural disaster strike these Senator’s states, they aid their constituents. Well the overload is an equivalent to a disaster. The only holdup should be a major issue pertaining to a nominees qualification. The astonishing thing is that, among the 19 pending, there are none. Every male or female appearing before the Judiciary Committee has had almost unanimous support in return, including an affirmation from Grassley.
Which brings me to my second point which is, why wait? I understand the desire of Republicans to limit Obama’s impact on the courts but, let’s face it, even by stalling, with four more years of an Obama Presidency, the GOP will probably succeed in blocking only a handful by late 2016. So holding up folks now that can be cleared by unanimous consent achieves nothing, which is pretty good even for obstructionists. And in Grassley’s case, that’s just being Iowa stubborn and then some.
Which may be more ingenuous than Orrin Hatch. The Utah Senator, who bemoaned Democrats for blocking ten out of Bush’s some 200 nominees by the way, actually said in November that no nominee should get through lame-duck. It’s tradition, he said. Well the tradition is that nominees get confirmed even as late as September of an election year. The Democrats allowed that in 2008, voting by unanimous consent for ten of Bush’s nominees. This September, just two nominees were let through, and that was after much kicking and screaming by Republicans.
And when Hatch chaired Judiciary, and even when he passed the gavel to Leahy upon the Democrats winning control, Bush nominees had to wait an average of four months for up or down votes. This year, most of the stalled Obama nominees have been waiting nine months, with Circuit Court nominees, which have yet to be put to votes, have been significantly longer.
Now, did Obama move too slowly during his first term in filling slots? Absolutely. Was he to passive at fighting for his stalled folks? Indubitably. Should Reid have been more aggressive at scheduling votes (particularly just before extended breaks)? I’ve made no qualms about that.
I’ll also note the fact that three of the four judges confirmed last week were not filling slots labeled by the Bar Association as “judicial emergencies,” although the votes taken were next in line in the “cue.” There are multiple nominees from California , New York , and Pennsylvania that would fill emergencies, and an article by Andrew Cohen entitled, “The Human Toll of Judicial Confirmation Delays” in the “Atlantic” puts the latter in perspective beautifully.
By the way, late word came today that two nominees that will be filling emergency slots — John Dowdell of Oklahoma and Jesus Bernal of California, will be voted on today, so that is ever more progress. But there are still Circuit Judges pending and votes for those folks are nowhere in site.
Which brings me to another matter: fairness to judicial candidates. A prime reason Sue Collins has been pressing the Kayatta matter hard is that the uncertainty of his nomination has caused his client pool to depress sharply. That is unfair to his staff and his family, and his livelihood, as the stalemate compromises his ability to earn a living.
Again, the Senate’s Constitutional duty is to advise and consent. The calendar, particularly after the election, shouldn’t make a difference. In that vein, it bears mentioning that those not currently cleared will have to be renominated, which is one feather in the cap for proponents of filibuster reform. Certainly, it should be done for District Courts. Either way, there’s no getting around the fact that these nominees, all of whom faced little resistance or controversy, could have been confirmed in a matter of seconds if Republicans allowed.
Since Election Day ,President Obama has put forth more nominees . Obviously, he knows that confirmations would not occur this session for the new folks even if things were progressing down a normal path. But by nominating them now, he is sending a signal that he will fight, and at the very least, to get the other’s done.
In closing, while the gavel of this Congress may quite possibly not be banged shut for the session until just before the opening of the next, we’ll see how many more nominees win confirmation by the time that happens. But there has to be progress next year. People should not suffer for no apparent reason. It truly is about justice for all.