Sustained Outrage

Holds and the 4th Circuit

With so much attention naturally focused on the nomination of Elena Kagan to the U.S. Supreme Court, it’s easy to forget that there are still 99 federal judicial vacancies, including 16 on the appellate level.

Several recent editorials have blamed the slow pace of confirmations on anonymous holds, a procedural maneuver that allows a single senator to block a nomination (or legislation) without having to provide any justification.

Here’s the Washington Post’s take, which blamed Sen. Jim DeMint (R-S.C.) for torpedoing a recent bipartisan effort to ban holds by attaching a last-minute amendment:

There is no excuse for the Senate institution known as the secret hold–the process by which a single, anonymous senator can block action without having to come forward and explain why. Senators know this, which is why every time the question has come before them, they have voted to do away with the secret hold. But somehow the hold has always held on — because while no senator has the guts to defend it publicly, behind the scenes the secret hold is a useful tool for those who are more interested in blocking and extorting than in legislating.

On Tuesday, an editorial in the Charlotte Observer claimed that a senatorial hold by Jon Kyl (R-Ariz.) was responsible for holding up the nominations to the U.S. Court of Appeals for the 4th Circuit of two North Carolina judges, Albert Diaz and James A. Wynn Jr. They were reported out of the Senate Judiciary Committee on Jan. 28.

Their nominations, as those of so many North Carolinians whose names have been sent to Washington for Senate approval, ran afoul of U.S. Sen. Jon Kyl, Republican of Arizona, and they have moved not one inch closer to Senate confirmation. Kyl has given no compelling reason for his action in late April blocking a vote by the full Senate. He has said only he did not want to jeopardize a deal between Republicans and Democrats on some other nominees, but Kyl appears to be using Wynn and Diaz as pawns in one of the pettiest displays of pertinacious politics in a congressional session noted for it.

The refusal to hold a confirmation vote on the two N.C. nominees is indefensible. There is no question about the character of these two nominees or their abilities. The only question is how long Sen. Kyl will block a vote. [North Carolina Republican Sen. Richard] Burr should use his influence with his party to allow this vote to go forward and put these outstanding jurists to work on the 4th Circuit Court of Appeals.

This piece in the Roanoke Times quoted Sen. Ron Wyden (D-Ore.), who co-sponsored the effort to get rid of holds, as saying the cause of open government was “blindsided” by DeMint, who effectively “kneecapped” his colleagues.

I’ve noted before that the Senate has seemingly imposed a roughly four-month waiting period before it confirms circuit judges. Since then, the Senate has confirmed three more circuit judges (O. Rogeriee Thompson to the 1st Circuit on March 17, less than two months after she passed out of committee; Thomas I. Vanaskie to the 3rd Circuit on April 21, after about 4½ months; and Denny Chin to the 2nd Circuit on April 22, also after about 4½ months).

All three of those candidates leapfrogged over Jane Branstetter Stranch, a nominee to the 6th Circuit who was reported out of committee on Nov. 19 (so that’s just over six months and counting). I still think four months is a pretty good estimate, which would put Diaz and Wynn up for confirmation in late May or early June. But they could be in for a long wait if they aren’t confirmed by June 28, which is when Kagan’s confirmation hearings are scheduled to begin.