Sustained Outrage

bergerthumbnail.jpgFor court watchers, the big news in West Virginia this week was the unanimous confirmation of Judge Irene C. Berger (right) by the U.S. Senate. Tuesday’s 97-0 vote makes Berger the first black judge on the federal bench in West Virginia history.

But Berger’s relatively smooth passage notwithstanding, the confirmation process is apparently becoming more contentious. After Michael A. Fletcher of the Washington Post noted that the Obama administration has submitted fewer names during its first nine months in office than its predecessor, several commentators have suggested that part of the reason so few judges have been confirmed is that Senate Republicans have taken obstructionism to a new level.

In a widely-read piece published Monday, Slate‘s Doug Kendall said that Senate Republicans have slowed the confirmation process to a crawl by delaying up-and-down votes even for candidates unlikely to raise objections.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

An Oct. 23 study by Russell Wheeler of the Brookings Institution, a Washington think tank, concluded that the relatively few Obama nominees are receiving speedy hearings before the Senate Judiciary Committee, but little more.

It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three. 

Part of the issue, Wheeler wrote, may be that Obama is in a position to reshape the federal judiciary in ways that President George W. Bush never could. According to Wheeler, 41 percent of Obama’s nominees to federal District and Appeals courts would replace a Republican nominee, compared to 22 percent of Bush’s judges who replaced Democratic nominees.

In April, writing in The American Prospect, Kendall and Simon Lazarus observed that conservative response to Obama’s first nominee, U.S. District Judge David F. Hamilton of Indiana, foreshadowed ugly, partisan battles over even uncontroversial judicial nominees.

Hamilton has support from Indiana’s two senators, Republican Richard Lugar and Democrat Evan Bayh, they wrote. They also quoted Geoffrey Slaughter, president of the Indianapolis chapter of the Federalist Society, a conservative group that routinely rails against activist judges, as describing Hamilton as “an excellent jurist” whose “judicial philosophy is left of center, but well within the mainstream, between the 30-yard lines.”

Yet on Tuesday, in the time allotted to debate Judge Berger’s qualifications, Sen. Jeff Sessions, the Alabama Republican who is the Judiciary Committee’s ranking member, called Hamilton’s nomination “clearly controversial”:

sessionsthumb.jpgNow, I think President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first circuit court nominee. Judge Hamilton’s nomination is clearly controversial. It was only exacerbated by the rushed hearing schedule on his nomination. Indeed, I think it is fair to say he is outside the mainstream of even President Obama’s nominees. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard. He has said that he believes a judge will “reach different decisions from time to time ….. taking into account what happened and its effect on both parties, what are the practical consequences.”

Judge Hamilton also appears to have embraced the idea of a living Constitution. In 2003, he indicated in a speech that a judge’s role included writing footnotes to the Constitution. I am not aware that a judge has the power to write footnotes to the Constitution, which has been ratified by we the people of the United States of America.

Sessions’ comments came in response to remarks by Sen. Benjamin Cardin (D-Md.), who wondered aloud why Judge Andre M. Davis, a federal judge from Maryland under consideration for the 4th Circuit Court of Appeals, was still waiting for an up-and-down vote. Cardin said that anonymous holds were being used to slow down the confirmation of qualified candidates like Davis.

cardinthumb.jpgI am somewhat perplexed. Floor time is valuable. Time has been set aside now to talk about the confirmation of a West Virginia district court judge. Yet I don’t see too many Members rushing down to speak. Why haven’t we brought up the other six district court judges ready for action? Why haven’t we brought up the four appellate judges, if there is a desire to debate, so we have time now. Let’s debate the issue. If there is a need for a vote, let’s determine how much time is necessary and then let’s get a vote. If there is a sincere effort to filibuster, which I find regrettable, then notify the leadership. Let’s schedule a cloture vote on these nominations.

The bottom line is, this is an abuse of the rights of an individual Member of the Senate, and certainly it is wrong for us to hold up the confirmation of judges who are prepared to take on this public responsibility. There is a bill pending that would create new judges. Why don’t we fill the current vacancies? Why don’t we get these appointments to the floor and vote on their confirmations?

Obama nominated Hamilton on March 17 and Davis on April 2. Both passed out of committee on June 4, 148 days ago and counting.