A historic nomination by President Obama is being considered by the Senate Judiciary Committee: Diane Humetewa is poised to become the first Native American woman on the federal judiciary. Humetewa is a highly qualified nominee with bipartisan support. She was nominated by President Obama with Senator McCain ’s recommendation to serve on the federal judiciary and was previously appointed by President Bush as the U.S. Attorney for the District of Arizona.
The Senate Judiciary Committee had Humetewa’s confirmation hearing on January 29, and her committee vote has been scheduled for this Thursday, February 13. But there is already a growing line of nominees stalled on the Senate floor unable to get a confirmation vote. On January 29, 29 nominees were stalled, and by February 6 the waiting list grew to 32 nominees who are stuck at Senate floor step in the confirmation process. Humetewa and her five fellow Arizona nominees will be added to the end of this already unacceptably long line.
In the meantime, Arizona needs qualified judges like Humetewa to fill its six federal judicial vacancies.
If Diane Humetewa is confirmed, she will be the:
First Native American woman to serve as a judge in a federal court;
Third Native American to be a federal judge; and
Only Native American in active service on the federal bench.
Diversity on the federal bench is always important, and Indian legal advocates and tribal leaders have emphasized the need for federal judges who understand Indian Law in particular.
Many Americans know little more about the complexities of Indian tribal laws—and their unique relationship to state and federal laws. Indian sovereign authority, recognized by federal law, extends to the Indian tribal courts that adjudicate Indian affairs-related matters. Some law firms have a specialized practice area in Indian law. Some law schools, such as Arizona State University’s Sandra Day O’Connor College of Law where Humetewa is a professor, have an Indian legal program “to promote an understanding of the differences between the legal systems of Indian Nations and those of the state and federal governments.”
“Indian legal experts have long said that tribal law gets shortchanged in the federal legal arena because so few judges are well-versed and experienced in it. This is one reason why federal cases are often harmful to tribal and Indian interests, according to many tribal analyses,” reported Indian Country Today after Republican Senators blocked Avro Mikkanen, a Native American previously nominated by President Obama to the federal judiciary.
The National Congress of American Indians applauded the nomination of Diane Humetewa and particularly noted her firsthand experience in federal Indian law. Humetewa’s Indian law background includes her work as an attorney on the U.S. Senate Indian Affairs Committee and an Appellate Judge on the Hopi Appellate Court.
This is an important nomination for which President Obama—and all Americans—should be proud. The Judiciary Committee should act expeditiously on this opportunity to make this federal judicial nomination a historic confirmation. That means that Republicans should not demand a needless delay in the committee vote as they have done in all but five cases since Obama became president. It also means the full Senate should finally be allowed to hold confirmation votes on the 32 nominees ahead of Humetewa and her fellow Arizonans.
On January 13, the Senate confirmed Judge Robert Wilkins to sit on the U.S. Court of Appeals for the D.C. Circuit. So far, despite a growing backlog of judicial nominees, he is the only judge to have been confirmed this year.
There are currently 96 vacancies in federal courts across the country. Thirty-nine of them have been officially designated “judicial emergencies” by the Administrative Office of U.S. Courts, indicating that there are too few judges available to handle the court’s workload. This isn’t a built-in feature of the judicial system. In fact, the Senate could cut the judicial vacancy rate by one third today.
There are 32 federal judicial nominees who have been approved by the Judiciary Committee and are waiting for Senate confirmation votes – enough nominees to fill one-third of the country’s judicial vacancies and reduce the number of judicial emergencies by a quarter. All but three nominees cleared the Judiciary Committee with strong bipartisan support, most unanimously. The Senate could confirm all 32 in an afternoon if Republicans would agree to hold simple yes-or-no confirmation votes on their nominations. They could even confirm all 32 in less than five minutes by holding a unanimous consent vote.
But Senate Republicans still seem to be uninterested in confirming nominees to carry out the business of the nation’s courts, even in the many cases where nominees have been recommended and supported by Republican senators.
Since the Senate was forced to change the rules of the filibuster in response to Republican intransigence, the GOP has retaliated by obstructing nominations in other ways. One of these has been demanding that each confirmation vote take the maximum amount of time possible: Senate rules allow for “post-cloture debate” after a filibuster has been broken – 30 hours of floor time for appeals court nominees and two hours for district court nominees. If Republicans forced the Senate to take the maximum amount of time on all 32 nominees currently waiting for votes, it would take the Senate 204 hours to clear the backlog.
Those 204 hours would add up to five weeks of full-time work: five weeks in which the Senate wouldn’t be able to do anything else – not immigration reform, not a debt ceiling deal, not an update to the Voting Rights Act.
The Senate could use five weeks of its time this year to confirm judicial nominees. Or, Senate Republicans could agree to confirm all 32 nominees in five minutes, cut the number of judicial vacancies by a third, and move on to other business.
PFAW has launched a petition to urge Senators to address the judicial nominations crisis and stop the obstruction of judicial nominees .
I can understand why Senate Republicans are angry about the recent change in the Senate’s filibuster rules. It means that their agenda of obstruction just got a lot harder. But all their righteous indignation is ringing hollow.
Yesterday, Sen. Chuck Grassley, the top Republican on the Judiciary Committee, issued a statement attacking the committee’s chairman, Sen. Patrick Leahy, for saying he would consider changing committee policies to make it harder for Republican senators to hold up nominations.
Democrats “are slowly but surely taking the world’s greatest deliberative body and moving towards a majoritarian body,” Grassley charged.
The reason Leahy has to even consider policy changes in committee is that GOP senators, in an attempt at retribution for the “nuclear option,” have repeatedly brought up an obscure rule that allows them to prevent the Judiciary Committee from meeting. They have also prevented the committee from meeting by simply not showing up, ensuring the lack of a quorum. Along with threats that Republican senators would refuse to return their “blue slips” signaling approval for hearings on home-state nominees, Sen. Leahy was faced with the prospect of not being able to process any nominees. Senate Republicans have literally not been allowing “the world’s greatest deliberative body” to deliberate on judicial nominations.
And the reason why Senate Democrats were driven to change the filibuster rules for presidential nominees in the first place was that the Republican minority was blocking nominees to positions they just didn’t want the president to be allowed to fill. In other words, they were using the Senate’s rules of obstruction in an attempt to nullify laws they did not like and reverse the results of the presidential election.
This didn’t promote “deliberation.” It shut the entire process down.
This sanctimonious whining from Grassley and his fellow obstructionist Republicans isn’t fooling anyone. Personally, I would have preferred not to have gotten to this place. My guess is that Senator Leahy would as well. But when you’re trying to govern a country and the minority party won’t let you complete even the most basic tasks of governance, there really is no choice. Comity has to be a two-way street.
The high and mighty act doesn’t work when you’re behaving like a child.