As the Senate prepares to vote this week on the Supreme Court confirmation of Elena Kagan, there is also reportedly a deal in the works to finally confirm dozens of the executive branch and judicial nominees who have been waiting—many of them for months—for votes on the Senate floor.
After seeing only two nominees confirmed during July, Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., are discussing terms for advancing at least some of the 84 nominations awaiting floor votes, aides said Monday. “We have a number of nominations that we’re looking at,” said Reid.
But some of the more controversial nominees are unlikely to be confirmed before the Senate returns in mid-September, if then. That may tempt Obama to use recess appointments to fill those vacancies at least temporarily — unless the White House agrees to pass up the opportunity to make recess appointments in exchange for Senate action on some nominees this week.
It’s about time that the Senate gets around to clearing the nominations backlog. But voting on nominees that were reported months ago without any opposition is no great concession by the Republican minority. It’s time to end the charade and the gamesmanship.
Take for example North Carolina judge Albert Wynn, whose nomination to fill a long-vacant seat on the Fourt Circuit Court of Appeals was approved by the Judiciary Committee in an 18-1 vote six months ago, and has been held up by GOP leadership ever since. David Savage at the Los Angeles Times describes the holdup of Wynn’s nomination as part of a political battle similar to “an old family feud”:
The GOP leader had no objection to Wynn. Instead, he said, he was getting back at Democrats who had blocked President George W. Bush's nominees to the same court. "My perspective on the 4th Circuit covers a little longer period of time," McConnell said.
The Senate's dispute over judicial nominees resembles a family feud that stretches over several generations. Judges are being opposed not because of their records, but because of what happened several years earlier to other nominees. Use of the filibuster rule, which the GOP had insisted was unconstitutional several years ago, has become a routine stalling tactic.
If confirmed, Wynn would fill a North Carolina seat on the 4th Circuit that has been vacant since 1994.
Let’s have a vote on James Wynn. Or let’s have a vote on Jane Stranch of Tennessee, nominated to fill a seat on the Sixth Circuit, who has the support of both of her home state Republican Senators. And let’s have a vote on Goodwin Liu, nominated for a seat on the Ninth Circuit, who has endorsements from across the ideological spectrum, including Clint Bolick and Ken Starr.
The debate over judicial nominations has become not about qualifications or the law, or about the urgent needs of the justice system, but about political game-playing. It’s great that the GOP has finally agreed to confirm some nominees who they never objected to in the first place. Maybe now they can move on to having a substantive debate on those, like Wynn, Stranch, and Liu, against whom they continue to use every passive-aggressive rule of Senate procedure.
Nine Democratic senators went to the Senate floor today to call for up-or-down votes on the confirmation of 20 federal judicial nominees, many of whom have been waiting months to be confirmed and several of whom passed out of the Judiciary Committee with little or no opposition from members of either party. The Senators who spoke on the floor today included Mark Udall (CO), Michael Bennet (CO), Amy Klobuchar (MN), Herb Kohl (WI), Sheldon Whitehouse (RI), Jack Reed (RI), Ben Cardin (MD), Tom Carper (DE), and Ted Kaufman (DE).
The explanation from Senator Sen. Jeff Sessions, one of the architects of the obstruction? "Things do not always go as smoothly as you would like."
Among the nominees Democratic senators sought votes on were several whose nomination sagas we've been following. There were Albert Diaz and James Wynn of North Carolina who would be be, respectively, the first Latino and fourth African American appointed to the Fourth Circuit Court of Appeals (and who garnered one no vote between the two of them in committee). There was John McConnell of Rhode Island, who has come under attack from the powerful lobbyists at the Chamber of Commerce because of his record of defending consumers in suits against large manufacturers. There was William Joseph Martinez, the Colorado judge who has come under attack for having sat on an advisory panel for the ACLU.
And then there was Goodwin Liu. Sen. Ben Cardin told a Netroots Nation panel last week that Liu's hearing with the Judiciary Committee was "one of the most impressive confirmation hearings we've ever had." Richard Painter, who served as a lawyer in the Bush White House, called him "a fine choice for the federal bench." Yet, inexplicably, Liu, a law professor at Berkeley who is respected by legal scholars across the political spectrum, has become a flash point for Republican obstruction.
It's time for the Senate GOP to stop stalling votes on these critical nominations and come clean about their true priorities for the courts.
Many thanks to the Senators who took to the floor today to shine a spotlight on this unprecedented and senseless obstruction.
After helping Elena Kagan sail through the Judiciary Committee, Chairman Leahy isn’t content resting on his laurels. Yesterday the Chairman censured his Republican colleagues for their obstructionism on lower profile but just as vital judicial nominations. When Republicans foiled his attempt to schedule discussion on 4th Circuit nominee Jane Stranch of Tenessee, who enjoys the bipartisan support of her home state Senators, Chairman Leahy called them out:
Senate Republicans have further ratcheted up the obstruction and partisanship that have regrettably become commonplace this Congress with regard to judicial nominees. We asked merely for a time agreement to debate and vote on the nomination. I did not foreclose any Republican Senator from voting against the nominee or speaking against the nominee but simply wanted a standard agreement in order to allow the majority leader to schedule the debate and get to a vote. This is for a nomination reported favorably by the Judiciary Committee over eight months ago with bipartisan support. Yet the Republican leader objected and blocked our consideration.
For anyone who still thinks that both parties engage in this kind of obstructionism when in the minority, Senator Leahy came prepared with statistics:
No one should be confused: the current obstruction and stalling by Senate Republicans is unprecedented. There is no systematic counterpart by Senate Democrats. In fact, during the first 2 years of the Bush administration, the 100 judges confirmed were considered by the Democratically controlled Senate an average of 25 days from being reported by the Judiciary Committee. The average time for confirmed Federal circuit court nominees was 26 days. The average time for the 36 Federal circuit and district and circuit court judges confirmed since President Obama took office is 82 days and the average time for Federal circuit nominees is 126 days. So when Republicans say that we are moving faster than we did during the first 2 years of the Bush administration they are wrong. It was not until the summer of 2001 that the Senate majority shifted to Democrats, but as soon as it did, we proceeded on the judicial nominations of President Bush, a Republican President. Indeed, by this date during the second year of the Bush administration, the Senate had confirmed 58 of his judicial nominations and we were on the way to confirming 100 by the end of the year. By contrast, Republican obstruction of President Obama's judicial nominees has meant that only 36 of his judicial nominees have been confirmed. We have fallen dramatically behind the pace set for consideration of President Bush's nominees.
…Indeed, when President Bush was in the White House, Senate Republicans took the position that it was unconstitutional and wholly inappropriate not to vote on nominees approved by the Senate Judiciary Committee. With a Democratic President, they have reverted to the secret holds that resulted in pocket filibusters of more than 60 nominees during the Clinton years. Last year, Senate Republicans successfully stalled all but a dozen Federal circuit and district court nominees. That was the lowest total number of judges confirmed in more than 50 years. They have continued that practice despite the fact that judicial vacancies continue to hover around 100, with more than 40 declared judicial emergencies.
As Chairman Leahy emphasized, these obstructionist tactics have rarely come with explanations. For example, Judge James Wynn, who was nominated first by President Clinton and then by President Obama and would become the first black Justice on the 4th Circuit, has been on anonymous hold for six months with no reason given.
Our judicial system can’t function properly without qualified judges on the bench. But Senate Republicans are leaving dozens of judicial vacancies open for purely political reasons. Good for Chairman Leahy for speaking out on this.
Yesterday, Sen. Kay Hagan of North Carolina tried to convince the Senate to confirm two appeals court nominees from her state. The two nominees, Judges James Wynn and Albert Diaz, have no controversial baggage--each received near-unanimous bipartisan support from the Judiciary Committee.
The confirmation of Wynn and Diaz would also contribute to the Obama Administration’s effort to add diversity to a woefully un-diverse court system. Diaz would be the first Latino appointed to the Fourth Circuit, Wynn the fourth African American.
Wynn and Diaz have both been waiting 169 days—over five months— for a Senate vote.
But none other than Minority Leader Mitch McConnell took to the floor yesterday to block a vote on the two nominees. He freely admitted that his action had nothing to do with Wynn and Diaz themselves, but was rather a purely political retaliation against the president’s recess appointment of a Medicare and Medicaid administrator. That appointment was not only unrelated to Wynn and Diaz, but came after the two nominees had already been stalled for months on the Senate floor.
Watch the video of Hagan’s and McConnell’s exchange:
Using judicial nominees as political pawns—thereby leaving important vacancies in courts throughout the country and stalling efforts to put judges with diverse background on the bench—is a tactic that the Republican minority has been using with zeal.
We’ve been collecting statistics on Republican efforts to keep qualified judges from starting their jobs. Here’s the latest update:
Nominees waiting for confirmation: 21
Nominees who have been waiting for more than 90 days: 18
Average number of days since nominated: 161 (200 for circuit court nominees)
Average number of days waiting for a Senate floor vote: 90 (111 for circuit court nominees)