As Politico.com and others reported last week, there appears to be some movement — or at least discussion of possible movement — on many of the 38 judicial nominees currently awaiting confirmation votes in the full Senate. In the rumored deal between Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), Democrats would have to agree to send four nominees back to the president in exchange for Republicans agreeing to confirm up to 19 non-controversial candidates.
But is a last-minute deal, with time running out before the new Congress takes office in January and forces President Obama to re-submit all of his pending nominees, really the only way to fill any vacancies? (The Senate hasn’t confirmed a federal judge since September.)
No, according to a rather unlikely source: Richard Painter, former associate counsel to President George W. Bush. In a Dec. 9 Huffington Post piece, Real Republicans Don’t Filibuster, Painter revisited public statements made by GOP senators during the previous administration that decried the use of filibusters to block President Bush’s nominees. They were right then, and they’re still right, he maintained.
For the reasons stated by these leading Republican senators, filibustering judicial nominees is wrong. Moreover, the lame duck session does not provide Republicans any excuse for suspending this principle. Since 1933, when the 20th Amendment set January 3 as the date for congressional turnover, there have been 70 lame duck judicial confirmations; 64 were of Republican nominees, and 15 occurred after Republicans lost seats in the Senate. Moreover, the recent elections focused on jobs and the economy, not judges. Republicans have no midterm mandate to block qualified nominees.
Sticking to principle is not only the right thing to do; it is also good politics for Republicans. First, the public shares the view that the filibuster is wrong. It is one thing to vote no; it is another to prevent other people from voting because they might vote yes.
Second, if Senators support a filibuster after denouncing them, it would be hard for anyone to trust what they say again. Their past opposition to filibusters would be seen as mere partisan politics. Voters respect politicians with principle; they are tired of hypocrisy.
Third, what goes around comes around. Someday Republicans will again control the White House and Senate, as they did for much of President Bush’s two terms. When a Republican President nominates conservatives to the federal bench, Democrats will look for an excuse to prevent a Senate vote. Republican Senators who filibuster now give Democrats an excuse to filibuster later.
The result could be a devastating set-back for Republicans, whose successes in putting conservatives on the bench have historically outpaced Democratic successes in getting liberals confirmed. Consider, for example, the well-known conservatives among successful Bush nominees: John Roberts, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Brett Kavanaugh, Mike McConnell, and Jeff Sutton, to name a few. The failed nomination of Miguel Estrada was the exception rather than the rule. Democrats justified their obstruction then by pointing to Republican efforts to block President Clinton’s nominees, including Richard Paez, whose four-year confirmation battle was the longest ever for a circuit court nominee.
Republicans’ hard-fought battle during the Bush Administration to move away from this “tit-for-tat” toward an effective confirmation process would be lost if Democrats are now given an excuse to block future Republican nominees. Republican Senators could never again with a straight face say that filibusters are wrong. In confirmation politics, two wrongs don’t make a right; they just beget more wrongs.
Fourth, there is no compelling reason to vote against President Obama’s nominees, much less to prevent a vote on them. The nominee we hear about most often — Goodwin Liu — is mischaracterized as a radical liberal (perhaps because he teaches law at Berkeley or because he has written about how the law affects minority groups). Liu’s record, however, puts him well within the legal mainstream, and he has emphasized objectives shared by conservatives such as fixing substandard public schools and allowing parents more school choice. Moreover, his qualifications earned him the highest rating from the American Bar Association as well as endorsements from conservatives such as Ken Starr, Clint Bolick, and John Yoo. He would fill a “judicial emergency” seat that has been vacant more than 675 days.
If Liu’s nomination is the best President Obama can do to infuriate the right, the President is not trying very hard. Diatribes against Liu fill air time on talk radio but have nothing to do with the kind of judge he would likely be. Blocking him or any of the 22 other Obama nominees now awaiting a vote is not worth abandoning the principle that Republican Senators have been acclaiming for years: Senators should vote their conscience on judicial nominees, but they should vote.
The following day, People for the American Way’s Marge Baker decried Republicans for Holding Judges Hostage. She began by reminding readers that most of Obama’s pending nominees did not generate any resistance in the Senate Judiciary Committee, and many would help diversify the judiciary.
Of these nominees:
- 21 (55%) have been nominated to fill emergency slots.
- 29 (76%) are women or people of color.
- 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.
There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)
Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream — nominees who have had the misfortune of being tagged as “controversial” by Republicans:
- Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
- Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
- U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
- And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.
Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.