Senate Should Quickly Confirm Circuit Nominees, Like in 2006 Midterm Year

Because Republicans are now filibustering every judicial nominee and generally requiring hours of needless "post-cloture debate" before an actual confirmation vote can be held, it has been harder than ever to "clear the calendar" (which is Senate lingo for "hold confirmation votes on all the nominees who have been approved by the Judiciary Committee and are pending on the Senate floor"). Among the 31 nominees left hanging when the Senate took off for its spring recess last week are six circuit court nominees.

Five of the six were nominated last year; the sixth was nominated in February and was fully vetted by the Judiciary Committee earlier this month. Every one of these nominees should have a confirmation vote this spring, and any circuit nominees cleared by the committee in the coming months should have a confirmation vote before the Senate recesses for the midterm elections.

This would hardly be exceptional. In 2006, at this point in George W. Bush's presidency, the Senate confirmed eight circuit court nominees between April and September (plus a ninth during the lame duck session). Most of them had not even been nominated at this point in 2006 yet were confirmed by year's end, all but one before the Senate recessed for the midterms. These circuit court nominees went all the way from nomination to confirmation as little as 3½ months, 2½ months, and (in two cases) just two months.

Exceptional? Hardly. Only by redefining the current era of Republican obstruction as normal can the efficient processing of circuit court nominations be regarded as exceptional.

If the Senate in 2006 could confirm so many of President Bush's circuit court nominees so quickly, then why apply a different set of rules to President Obama's nominees?

Perhaps that is a question to ask Senate Republicans in the coming weeks if they have the audacity to demand an even slower pace on President Obama's nominees as the midterm elections approach.

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Senators Cornyn and Cruz Don't Help Texas Nominee

Several days ago we asked what Texas Senators John Cornyn and Ted Cruz would do at this week's business meeting of the Senate Judiciary Committee, on which they both serve. Would they stand up for their home-state's Fifth Circuit judicial nominee Gregg Costa? Or would they side with their fellow Judiciary Committee Republicans and let them delay Costa's scheduled vote for at least two weeks for no reason except to obstruct an Obama nominee?

This morning, we got our answer from the Texas senators: The vote was delayed. Cornyn and Cruz didn't even bother to show up for the meeting.

Committee chairman Patrick Leahy noted their absence:

I had hoped that we'd have one of the Texas senators here, so far as we have a Texas judge here, but apparently they're tied up.

It's not Senators Cornyn and Cruz who are tied up, but the Fifth Circuit Court, which has three vacancies, all of which have been designated as judicial emergencies. But they – and the people they serve – will just have to wait for some relief.

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Will Texas Senators Help Delay 5th Circuit Judicial Nominee Gregg Costa?

This Thursday, the Senate Judiciary Committee is scheduled to vote on several judicial nominees, including Fifth Circuit nominee Gregg Costa of Texas. With two Texans on the committee and the vacancy having been designated a judicial emergency by the Administrative Office of U.S. Courts, Sens. Cornyn and Cruz have the ability – and the responsibility – to make sure that vote isn't needlessly delayed by their GOP colleagues.

Costa sailed through his committee hearing last month, with no one expressing any concerns with his nomination. In fact, Sen. Cornyn cited Costa's nomination as a welcome area of agreement between the two parties. So why would we even be talking about a partisan-motivated delay?

Unfortunately, in the Obama era, needless delays of committee votes have become the GOP's standard operating procedure. Republicans have exercised the right of the minority party to have a committee vote delayed without cause in almost every instance for President Obama's judicial nominees, which is an unprecedented abuse of the rules. Until a month ago, they had allowed only five exceptions to this delaying tactic.

Notably, in a development Sens. Cornyn and Cruz should pay attention to, the number of exceptions doubled just a couple of weeks ago when Arizona Sens. Flake and McCain persuaded their colleagues not to delay a committee vote on six desperately needed district court nominees for a state overrun with judicial emergencies.

Like Arizona, Texas has an unusually acute need to have its vacancies filled. All three of the Fifth Circuit's vacancies are for seats slotted for Texas judges; that's a full third of the Lone Star State's allotted seats. All three of the court's vacancies have been formally designated as judicial emergencies, since the caseload is so high there. The seat to which Costa has been nominated has been vacant for more than two years.

If Costa doesn't get a committee vote as scheduled, that means a further two-week delay (since the Senate will be in recess next week). But why delay a consensus nominee whose service is badly needed? The senators from Texas are well placed, as members of the Judiciary Committee, to urge their GOP colleagues not to obstruct the scheduled vote.

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Flake and McCain's Next Steps for AZ Nominees

Yesterday, Arizona Sens. John McCain and Jeff Flake persuaded Judiciary Committee Republicans not to delay a scheduled committee vote on six nominees from their home state. Chairman Leahy noted that the vote would not have happened but for McCain and Flake's efforts. The senators made their colleagues understand that six of their state's 13 federal district judgeships are vacant, and that the crisis is so serious that the Administrative Office of U.S. Courts has officially designated all six vacancies as judicial emergencies.

Now the question is whether they will try to get that message across to all the other Senate Republicans.

In ordinary times, having been confirmed by the Judiciary Committee, the six Arizona nominees would quickly get a confirmation vote on the Senate floor. But since Republicans are blocking votes on any and all judicial nominations, the Arizonans find themselves at the back of a ridiculously long line, with 28 nominees ahead of them.

So before anyone can even think about those vacancies in Arizona getting filled, the Senate will have to conduct 28 cloture votes to break 28 filibusters. This is an extremely time-consuming process, because Senate rules allow Republicans to demand hours of "post-cloture debate" before a confirmation vote. Absent Republican willingness to waive the rule (which we have not seen so far), each circuit court nominee will take 30 hours of the Senate's time for needless post-cloture debate. For district court nominees, the same 30-hour rule that usually applies to them has been reduced to two hours under a temporary rule that expires at the end of the 113th Congress (in early January 2015).

That's nearly 200 hours of time-wasting "post-cloture debate" before the Senate can finally get to the Arizona nominees. Assuming 40-hour workweeks, that's five wasted weeks of doing nothing else. Of course, the Senate does actually have other items on its agenda, so absent a lifting of the GOP's obstruction, the Arizona seats will remain empty for many more months.

But it doesn't have to be that way. McCain and Flake have already demonstrated their willingness to exercise their influence with those of their GOP colleagues who serve on the Judiciary Committee. Now the question is whether they will try to persuade the rest of their colleagues to end the blockade and eliminate the bottleneck so the Senate can get to the Arizona seats in a timely manner.

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Grassley Says Every Senator Has Right to Vote on Nominees He Filibustered

The Senate Judiciary Committee's senior Republican, Chuck Grassley, said this morning that all senators have the right to cast a roll-call confirmation vote on judicial nominees, including ones that he helped to filibuster.

At today's committee meeting, Grassley talked about four judicial nominees who were all confirmed this week with overwhelming bipartisan majorities, each with only a smattering of no votes. He noted that even though all four had been approved by the committee by unopposed voice vote, there were a few senators not on the committee who voted no on the floor. Grassley said he was bringing this up to show that:

A voice vote in committee does not necessarily mean that the nominee has unanimous support, and every member [of the Senate] deserves the right to a recorded vote. [emphasis added]

Here's what he left out: Those recorded votes happened only because Democrats defeated filibusters of the four nominees by Grassley and the overwhelming majority of his fellow Republicans. In fact, the Republicans haven't agreed to a single up-or-down confirmation vote since November.

If Grassley now thinks that "every member deserves the right to a recorded vote" on judicial nominees, perhaps the GOP will stop blocking votes on qualified nominees. With the committee having advanced another six nominees today, there are now 34 judicial nominees who have been approved by the Judiciary Committee and are eligible for a yes-or-no confirmation vote. Unless Republicans stop their universal filibuster of all judicial nominees, the chamber's rules could require the Senate to waste more than 200 hours in needless "post-cloture debate" before they can all be confirmed. That's weeks and weeks of wasted time.

Forget about what "every member" has a right to. The American people have a right to a Senate that does its job.

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Reid Calls Out Republicans on Obstruction of Judicial Nominees

On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) responded to Sen. Chuck Grassley’s (R-Iowa) absurd claim that this Congress has done well in confirming judicial nominees. In fact, Republicans have not consented to even one judicial confirmation vote since November. The few votes that have been held since then have been over GOP filibusters. Unfortunately, Senate rules allow them to demand hours of needless “post cloture debate” after every cloture vote, so it could take weeks and weeks of Senate floor time to get through all the nominees waiting for a simple yes-or-no vote.

Reid was quick to voice that the confirmation process has been unnecessarily delayed by GOP obstruction:

Everyone knows that we are in this situation because of Republicans slow-walking every nomination—every nomination. There is no reason, no reason whatsoever that we are having votes on cloture on these judges.

“It is a waste of the taxpayers’ time to go through the process we’ve been going through.

Reid, aware of the prolonged time they will spend clearing the backlog due to these procedural delays, promised that they will get through filing cloture on all of the nominees.

If that’s what the Republicans want us to do, then that’s what we’ll do. The American people will see this colossal waste of time that we’ve been going through.

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Will McCain and Flake Let GOP Obstruct AZ Nominees?

Next Thursday, the Senate Judiciary Committee is scheduled to vote on six district court nominees in Arizona. Odds are it won't happen.

That's because delaying the committee vote is a small but reliably constant way that Senate Republicans delay and obstruct all of President Obama's judicial nominees. Committee rules let the minority have a vote "held over" until the next meeting without providing a reason. That next meeting is often a week later, but when it comes before a recess, the delay can be significant. As part of the massive escalation in obstruction that Republicans launched the moment President Obama took office, they have routinely held over nominees, even for completely unopposed nominees. In fact, only five Obama judicial nominees have actually been allowed by the GOP to have their committee vote held as scheduled. The last time they let one through on time was in 2011, and that was for an Arizona nominee to replace the murdered Judge John Roll.

Perhaps they will make another Arizona exception this time. Arizona has 13 federal district judgeships, but six of them are vacant. That is a substantial vacancy rate. And because of the high caseload in Arizona courts, the Administrative Office of U.S. Courts has formally designated all six of the vacancies as "judicial emergencies."

Sen. Jeff Flake, himself a member of the Judiciary Committee, told his colleagues last month how desperately the people in his state need these vacancies filled: "Talking to those serving on the bench in Arizona now, they're happy to see the caseload probably cut in half" when the six nominees are confirmed. Sen. McCain has also stressed the urgency: "The recent judicial vacancies in Arizona have created an unsustainable situation for the Court and are a serious impediment to the administration of justice for the people of Arizona. The need to fill these vacancies is critical as the District of Arizona ranks as one of the top ten busiest district courts in the country."

The six nominees were originally scheduled for a committee vote on February 13, but the hearing was cancelled due to a snowstorm. Then came a week's recess. Now they are scheduled for February 27, next Thursday. Since this will be the first meeting of the committee with the Arizona nominees on the voting agenda, Republicans can be expected to needlessly request that the vote be held over … unless McCain and Flake can convince them not to obstruct.

Since Flake is on the committee, eyes will be particularly focused on him. Can he convince his GOP colleagues not to prolong the crisis in his state by delaying the vote? Will he even try?

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Burr's Blue Slip Abuse Continues

North Carolina Sen. Richard Burr has been justly criticized for his obstruction of Jennifer May-Parker, a judicial nominee who he originally recommended to the White House back in 2009. If confirmed, May-Parker would become the first African American federal judge in the Eastern District of North Carolina. Without Burr's support, Judiciary Committee Chairman Patrick Leahy won't even schedule a hearing for the nominee. Unfortunately, the senator has steadfastly refused to say why he is blocking her.

NC Policy Watch's Progressive Pulse blog has posted the brief form letter Burr is sending to constituents who want to know why he is single-handedly keeping this seat empty. Remember as you read this that the nominee Burr is blocking is one that he himself recommended in 2009:

In July 2009, I provided a list of recommendations to President Obama with candidates who could fill this position, along with recommendations for other judicial vacancies in North Carolina. While it is my policy not to publicly discuss conversations I have had with the White House regarding these recommendations, I am committed to seeing that our judicial vacancies are filled with qualified judges.

The blogger's response:

How's that for some misleading, mealy-mouthed hogwash? Not only did the Senator offer up the bogus "I don't talk about such things with my constituents" excuse, he clearly implies that it's the President's fault for not nominating someone on his (Burr's) list. But, of course, as has been known for some time, May-Parker WAS on Burr's list!

This is hardly the first time that Burr has been caught misleading people who have the audacity to ask him to explain his official actions as a U.S. senator. Last month, he deflected a reporter by claiming that "I just don't share anything about the judicial nominations process." Unfortunately for Burr, that was revealed not to be true.

Perhaps Burr should remember that the people of North Carolina are his employers. If he does not want to explain his official actions to them, perhaps he should consider another line of work.

In fact, a committee hearing would be the perfect place for Burr to raise whatever problems he might have with the nominee. That would also give May-Parker a chance to answer any questions Burr and other senators might have. But he seems willing to continue his abuse of the current blue slip system, in which Chairman Leahy does not hold a hearing without the consent of both home state senators.

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GOP Senators Fail to Support Their States' Judicial Nominees

Because of Republican refusal to let Majority Leader Reid hold confirmation votes, there are 32 judicial nominations languishing on the Senate floor. They could be confirmed in a day, and even in a few minutes. But with Republicans filibustering all judicial nominees, the Senate will have to spend weeks doing nothing but engaging in needless "post-cloture debate" before finally being able to confirm these 32 nominees.

All these nominees have had the support of their home-state senators, many of whom are Republicans. But with the GOP blocking votes on those same nominees, that support seems to be in name only.

For instance, Arkansas senators Mark Pryor (D) and John Boozman (R) were united in their strong support of nominees James Moody and Timothy Brooks before the Judiciary Committee last fall. Both nominees were approved by the committee unanimously, Brooks in October and Moody in November. But since then, Republicans have prevented them from having confirmation votes. Yesterday, Pryor went to the Senate floor to request unanimous consent to hold a confirmation vote, which Republican Chuck Grassley objected to. Boozman, however, did not speak up for the nominees or against his party's sabotage of the federal courts in Arkansas.

Such silence characterizes most if not all of the Republican senators who seem not to be protecting their states' nominees:

Illinois (Mark Kirk): Manish Shah (Northern District) and Nancy Rosenstengel (Southern District) were both approved by the Judiciary Committee by unanimous voice vote on January 16 and February 6, respectively. Rosenstengel would fill a vacancy that has been officially designated a judicial emergency by the Administrative Office of U.S. Courts.

Kansas (Pat Roberts and Jerry Moran): Nancy Moritz (Tenth Circuit) and Daniel Crabtree (District of Kansas) were both approved by the committee by unanimous voice vote on January 16. Crabtree would fill a judicial emergency and would fill a vacancy that opened back in 2010; Moritz's vacancy opened in back in 2011.

Maine (Susan Collins): Jon Levy has been awaiting a confirmation vote since January 16, when the committee approved him overwhelmingly. Sen. Collins spoke glowingly about Levy when he was nominated and when he appeared before the Judiciary Committee. But now what he needs is for her to have a conversation with her fellow Republicans about letting him have a confirmation vote.

Missouri (Roy Blunt): Douglas Harpool was unopposed when the committee approved his nomination on January 16. He would fill a seat that became vacant ten months ago when a sitting judge passed away.

Pennsylvania (Pat Toomey): Gerald McHugh and Edward Smith were both among those approved by the committee on January 16, Smith unanimously and McHugh with a bipartisan 12-5 vote. Sen. Toomey has noted that "Judge Smith will sit in the Easton courthouse, which has lacked a sitting federal judge since 2004, thus ensuring that the people of the northern Lehigh Valley will once again have close, ready access to the federal judiciary." But unless Toomey can get his party to relent, the people of the northern Lehigh Valley will have to wait.

Tennessee (Lamar Alexander and Bob Corker): Pamela Reeves, who would be the first woman federal judge in the state's Eastern District, was approved by the Judiciary Committee by unanimous voice vote in November, yet has not been allowed a simply yes-or-no vote. Since then, she has been joined by Sheryl Lipman, who was similarly approved unanimously last month.

Utah (Orrin Hatch and Mike Lee): Carolyn McHugh would be the first woman from Utah to serve on the Tenth Circuit. Both her senators are actually on the Judiciary Committee. Last year, Hatch said he hoped the Senate would "act quickly" in confirming her, and Lee said he would work to "ensure her speedy confirmation." But this year? Despite her unanimous approval by the Judiciary Committee, Hatch and Lee's party hasn't allowed her to take her seat on the Tenth Circuit.

Wisconsin (Ron Johnson): James Peterson would fill a seat that has been vacant for more than five years, and which has been designated a judicial emergency. Last year, Sen. Johnson recommended him to the White House and urged his fellow Senators toward a "swift confirmation." He was approved with overwhelming bipartisan support by the Judiciary Committee last week, but he and the two other nominees advanced that day found themselves at the back of a line that already had 29 people on it. If Johnson wants a "swift confirmation," he might ask his fellow Republicans to let up and allow votes on all those other nominees.

In all these cases, courtroom vacancies could be filled if only Republicans would allow it. Each of these Republican senators has to decide whether GOP leader Mitch McConnell deserves a show of loyalty more than their constituents deserve a fully functioning system of justice.

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GOP Blockade of Unopposed Ark. Judicial Nominees Disrupts Local Election

Because of ongoing Republican obstruction, the Senate may be forced to take five weeks of its time to confirm 32 mostly unopposed judicial nominees ... all of whom could be confirmed in five minutes. Among those 32 are two from Arkansas. Sen. Mark Pryor stood up yesterday to urge his colleagues to allow a vote on the two Arkansans, but Republicans would have none of it.

Some background: Timothy Brooks was approved by the Judiciary Committee by unanimous voice vote way back in October. Two weeks later, the committee approved James Maxwell Moody, also by unanimous voice vote. But in the months since then, Senate Republicans have refused to give the "unanimous consent" that is required to schedule a confirmation vote without the need for a filibuster-busting cloture vote. So Brooks, Moody, and 30 other highly qualified nominees are stuck.

Yesterday, Sen. Pryor stood on the Senate floor and explained how the GOP's obstructionism was messing up local elections in his state: With the Senate preparing to leave town before a snowstorm and not return until the last week of February, Pryor explained the impact of inaction on the people of his state. As reported in the Arkansas Times Record:

Pryor said there was an urgent need to confirm Moody in particular, because the filing period to be listed on the ballot for Pulaski County Circuit judge opens later this month.

Without confirmation, Moody is left to wonder if he should file for re-election. If he does, his name cannot be removed from the ballot even if is confirmed to the federal bench.

"So this is causing a lot of problem back home," Pryor said on the Senate floor.

But the Judiciary Committee's senior Republican, Chuck Grassley, objected. Why? Because Senate Democrats changed the filibuster rules last year (although Pryor actually voted against the change).

It is important to note Grassley's situational ethics. In 2005, when it was George W. Bush's nominees who were at issue, he publicly supported the effort of Senate Republicans to eliminate the filibuster altogether for judicial nominees, and to make that change in Senate rules by majority vote. For instance, check out this press conference he gave with fellow GOP senators on May 19, 2005 (about 13 minutes into the clip).

So it was awfully rich yesterday for Grassley to cite the November rules change as justification for blocking votes on the two Arkansas nominees (as well as the 30 others being stymied). When Grassley makes comments like that, you almost expect to hear a laugh track.

Unfortunately, it isn't funny that the Senate will have to waste weeks of its time in needless "post-cloture debate" when it could confirm all these nominees in less than a day. Nor is the damage that the GOP is doing to the nation's federal court system and the Americans who rely on it for access to justice anything to laugh at.

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