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.