Sustained Outrage

Judicial nominations: “Partisan political warfare”?

That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:

arlenspecter.jpgSpeaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.

At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.

It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that. 

Well, there was no truce.

On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”

And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.

Hamilton, President Obama’s first judicial nominee, received more far more nays than Maryland Judge Andre M. Davis (72-16) did when he was confirmed for a seat on the 4th Circuit earlier this month. More senators voted against Hamilton than voted against Sonia Sotomayor (68-31) when she was confirmed as an associate justice for the U.S. Supreme Court.

The stalling tactics over judicial nominees even caught the attention of the Gray Lady‘s editorial board, who weighed in Tuesday with an editorial that scolded both the President and Senate Republicans:

Appointing federal judges, who have enormous power and serve for life, is one of the most important presidential responsibilities. President [George W.] Bush, who was intent on leaving an ideological imprint on the judiciary, made his nominations quickly and pushed hard to have them confirmed. By the end of his first year, according to a report by the liberal group Alliance for Justice, he had nominated 65 federal judges and 28 were confirmed.


On the confirmation side, the fault lies with the Senate. Obama nominees who have been reported out of the Judiciary Committee have waited months for a vote from the full Senate, far longer than is necessary.

Senate Republicans have been doing their best to drag things out. In March, every Republican senator signed an outrageous letter to the White House warning that they would filibuster any nominee from their home states if they did not approve the choice in advance. That was a dizzying reversal. In the Bush years, Senate Republicans professed to be so upset about Democrats’ filibustering that their majority leader threatened the “nuclear option,” which would have eliminated the use of filibusters for all judicial nominations.

Senate Democrats used the filibuster very selectively against Bush nominees who were true extremists. The real outrage was who was approved.

Republican senators, by contrast, are unreasonably opposing good nominees who are well within the legal mainstream. A current example is David Hamilton, a distinguished federal district court judge in Indiana who has been nominated to the United States Court of Appeals for the Seventh Circuit in Chicago. Judge Hamilton has decidedly moderate legal views and strong centrist credentials, including the enthusiastic endorsement of Richard Lugar, an Indiana Republican. Judge Hamilton in no way resembles extreme Bush nominees that Democrats opposed.

The editorial correctly predicted that Senate Republicans would use Hamilton’s confirmation vote to send a message “that even moderate nominees will have a rough time so the White House should steer clear of more controversial choices” before concluding:

The Obama administration should not be deterred. After eight years of flawed Bush nominations, it should work hard to fill every judicial vacancy with the best possible judges — and it should act as quickly as possible.

As I’ve noted before, judicial nominees can expect their confirmations to take a while. Many nominations are routinely held over by the Judiciary Committee, as were those of Thomas I. Vanaskie and Louis B. Butler Jr. at a business meeting yesterday.

Judiciary committee roll call votes, like yesterday’s 15-4 vote on Jane Branstetter Stranch, seem to be a good indicator that the nominee can expect more than a handful of nay votes when taken up by the full senate. (CQ’s judicial nominations chart neatly illustrates how this was true for Sotomayor, Davis and Hamilton, the other Obama judicial nominees to receive roll call votes in committee.)

Interestingly, two nominees sailed through on a voice vote Thursday, the first time they were taken up by the committee following their Nov. 4 hearing: Christina Reiss and Abdul K. Kallon, who happen to be from the home states of Judicary Chairman Patrick Leahy (D-Vt.) and Ranking Member Jeff Sessions (R-Ala.), respectively.

I guess some pawns, to borrow Specter’s term, move ahead faster than others.