Why judicial nominees don’t get votes

October 7, 2010 by Andrew Clevenger

With Congress in recess until after the Nov. 2 election, there won’t be any movement on confirming any federal judges for a while, unless President Obama considers recess appointments, which is probably fight he doesn’t want to pick. (Presumably, he has enough headaches already.)

But I wanted to point out two very informative pieces by Jack Betts of the Charlotte Observer, which provide a terrific window into the tactics being used to slow the pace of confirmations to a crawl, and the effect on the federal judiciary. The use of secret holds to block nominees has “crippled the administration of justice in courts across the land,” Betts wrote. “Political intransigence on one side or the other has delayed the consideration of badly needed judges for many years, in this state and elsewhere.”

The Oct. 2 column, titled “Senate’s Judicial Graveyard,” continues:

You can argue all evening over which party is worse about it or where it began, but the fact is that both the Democrats and the Republicans bear responsibility for the failure of the Senate even to act on some judgeships, let alone reject them. For years it kept North Carolinians off the 4th U.S. Circuit Court of Appeals, even though this state is the largest of the five states in the 4th Circuit. It’s an important court, handling something like 99 percent of the federal appeals that come from North Carolina, South Carolina, Virginia, Maryland and West Virginia. In 208 years, the state had had only seven judges on the court.

Political rivalries and petty payback kept N.C. judges off that court and out of N.C.’s federal courtrooms, too. But this time, it’s not only politics. It’s pigheadedness.

Let’s look at the 16-year-old history of this sorry episode: In 1994, 4th Circuit Judge Dickson Phillips went on senior status, and President Bill Clinton nominated U.S. District Court Judge Jim Beaty of Charlotte for the vacancy in 1995. But then-Sen. Jesse Helms, no doubt peeved because Democrats had blocked one of his nominees for a judgeship, sat on the Beaty nomination. The 4th Circuit court didn’t need any more judges, Helms said.

This back-and-forth prevailed for years. When Democrat John Edwards was elected to the Senate in 1998, he blocked Helms’ nominees, and Helms blocked Edwards’ nominees for judgeships. One encouraging note of bipartisanship came after Helms left the Senate, and Edwards and Republican Sen. Elizabeth Dole backed Allyson Duncan for the 4th Circuit and she was confirmed.

But when Republican Sen. Richard Burr joined Dole in the Senate, their nominees for the 4th Circuit – District Judges Terrence Boyle and Robert Conrad – were blocked. Boyle’s nomination was controversial, but both he and Conrad deserved a Senate vote one way or the other. They didn’t get it. That was the Democrats’ failure, a childish, obstinate refusal to vote on two experienced judges who are regarded as tough but fair jurists.

When Barack Obama became president, this much changed: The state’s two senators, incumbent Republican Burr and newly elected Democrat Kay Hagan, backed both of the president’s N.C. nominees for the 4th Circuit. They were N.C. Court of Appeals Judge Jim Wynn (who had been blocked by Helms when President Clinton nominated him in 1999) and N.C. Superior Court Judge Albert Diaz. Wynn, a Navy veteran, was approved by the Senate Judiciary Committee overwhelmingly. Diaz, a Marine Corps veteran who specializes in business cases, was unanimously approved.

But for months their nominations swung slowly in the wind. Democrats asked for unanimous consent in the Senate to move on the noncontroversial nominations. Republicans were disinclined to agree to that, suggesting that Democrats schedule a vote as part of the normal debate process, which takes a lot longer. That resistance was part of a slowdown on judicial consideration that Republicans in the Senate quietly imposed – perhaps in hopes of stalling Democratic nominations in case they win the Senate after the midterm elections Nov. 2.

In a follow-up post on his blog on Monday,  Betts answered a question that many, myself included, have wondered as many of the president’s nominees have languished on the Senate’s agenda without getting votes: Why don’t the Democrats use their substantial majority to push the nominees through? Why doesn’t Senate Majority Leader Harry Reid (D-Nev.) simply override the threat of a filibuster and schedule votes for nominees at his discretion?

Well, Reid’s deputy communications director, Regan Lachapelle, e-mailed Betts to explain why.

Hi Jack,

Just saw your article on judicial nominations. I think it is good, but there was just one thing (procedurally) I want to clarify.

Everything that we do here in the Senate has to be done by unanimous consent- that includes setting up debate time and scheduling votes.

It only takes one Senator to object to anything. So, that means that Republicans are objecting to us even scheduling a vote. The only way to schedule a vote over these objections is to file cloture.

With Republican cooperation we could confirm every single judge on the calendar today and put them to work ensuring that justice for Americans seeking redress in our overwhelmed court system is no longer denied or delayed. Republicans have used their ability to draw out and delay confirmation as their primary leverage for obstructing the Senate from holding votes on these well-qualified judicial nominees who have volunteered to serve their country. Democrats have asked consent for votes on virtually all of these nominees and Republicans have objected, filibustering these nominations and requiring a cloture petition to be filed in order to secure a vote. Republicans are well aware that it requires approximately three days of Senate floor time to break a filibuster on each these nominees, and that it would therefore take approximately 69 days of Senate floor time, well more than is left in the current Congress, to confirm all of the judicial nominees currently pending on the executive calendar. Their stance is inexcusable and irresponsible.

Hope this helps and please let me know if you have any questions.

Thanks,

Regan

Regan Lachapelle

Deputy Communications Director

U.S. Senate Majority Leader Harry Reid

So let’s do a little math. There are currently 104 vacancies in the federal judiciary, which would translate into 312 days of Senate floor time — 10 months of debate on judicial nominees and nothing else — to invoke cloture and override the threat of filibusters for every seat.

Even if Reid pressed on only the 50 vacancies that have been declared judicial emergencies by the Administrative Office of the U.S. Courts, that still translates into 150 days — or five straight months — of Senate floor time. And one hopes that the Senate has more important things to do than debate the qualifications of judges for weeks and weeks on end.

One Response to “Why judicial nominees don’t get votes”

  1. JR says:

    It only took President Obama 20 months to nominate someone to a vacancy on the all-important DC Circuit:

    http://www.whitehouse.gov/the-press-office/2010/09/29/president-obama-names-two-us-circuit-courts-0

    This seat has remained vacant since Chief Justice Roberts left to join the Supreme Court.

    Clearly, slowing the pace of confirmations is a bipartisan tactic that can only get worse. The damage to the federal judiciary caused by these vacancies is undisputable.

    But let’s not pretend blocking and slowing nominees is the fault of only one party.

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