Sustained Outrage

Keenan confirmed, but why via cloture?

BarbaraMilanoKeenanEarlier today, the Senate confirmed Virginia Supreme Court Justice Barbara Milano Keenan to a seat on the U.S. Circuit of Appeals for the 4th Circuit by a vote of 99-0.

Keenan will fill the seat previously occupied by Judge H. Emory Widener, a Nixon nominee who died in 2007. The 15-seat panel, which covers West Virginia, Maryland, North Carolina, South Carolina and Virginia, now has three vacancies remaining.

But why did Keenan, who was approved unanimously by the Senate Judiciary Committee on Oct. 29, have to undergo a roll-call vote?

The short answer is that some senator anonymously blocked Keenan’s confirmation, forcing the senate to invoke cloture, which requires 60 votes to override the threat of a filibuster.

But when it came time to vote on Keenan, not one senator expressed disapproval of her nomination. Not one senator took issue with her merits or qualifications. Not one senator pointed to troublesome rulings or opinions in her three-decade career as a judge on every level of Virginia’s state legal system.

So, one can only conclude that the objection to a simple up-and-down vote, which can be accomplished much more quickly and efficiently than a roll-call vote, was a political maneuver with the sole purpose of slowing the entire nomination process to a crawl.

As Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee noted on Tuesday, the Senate is moving so slowly that the number of vacancies has gone up by at least ten since President Obama took office.

Leahy added:

Although the Senate Judiciary Committee has favorably reported 29 of President Obama’s Federal circuit and district court nominees to the Senate for final consideration, because of Republican obstruction, the Senate has confirmed only 15 Federal circuit and district court nominees.  So, by March 2 of the second year of President Bush’s first term, 39; by March 2 of the second year of President Obama’s presidency, 15.  That is more than 60 percent fewer.

Despite the fact that President Obama began sending judicial nominations to the Senate two months earlier than President Bush, after President Obama’s 13 months in office the Senate is has confirmed only 15 Federal circuit and district court judges.  During the 17 months I chaired the Judiciary Committee during President Bush’s first two years, the Senate confirmed 100 of his judicial nominees.  That is the stark reality and the difference in fair treatment and approach.

Last year’s total was the fewest judicial nominees confirmed in the first year of a Presidency in more than 50 years.  Those 12 Federal circuit and district court confirmations were even below the 17 the Senate Republican majority allowed to be confirmed in the 1996 session.

Among the frustrations is that Senate Republicans have delayed and obstructed nominees chosen after consultation with Republican home state Senators.  Despite President Obama’s efforts, Senate Republicans have treated his nominees much, much worse.

I noted when the Senate considered the nominations of Judge Christina Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly that they should serve as the model for Senate action. Sadly, they are the exception rather than the model. They show what the Senate could do, but does not.  Time and again, noncontroversial nominees are delayed. When the Senate does finally consider them, they are confirmed overwhelmingly. Of the 15 Federal circuit and district court judges confirmed, twelve have been confirmed unanimously.

That is right.  Republicans have only voted against three of President Obama’s nominees to the Federal circuit and district courts.  One of those, Judge Gerry Lynch of the Second Circuit, garnered only three negative votes and 94 votes in favor.  Judge Andre Davis of Maryland was stalled for months and then confirmed with 72 votes in favor and only 16 against.  Judge David Hamilton was filibustered in a failed effort to prevent an up-or-down vote.

The obstruction and delay is part of a partisan pattern.  Even when they cannot say “no,” Republicans nonetheless demand that the Senate go slow. The practice is continuing. This is the 17th filibuster of President Obama’s nominees. That does not count the many other nominees who were delayed or are being denied up-or-down votes by Senate Republicans refusing to agree to time agreements to consider even noncontroversial nominees.