In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Senate Majority Leader Harry Reid filed cloture yesterday on the nomination of John B. Owens to a seat on the US Court of Appeals for the Ninth Circuit—one that has been declared a judicial emergency and which has been vacant for almost 10 years. This moves forward the Senate judicial confirmations process that has been relentlessly slowed down by GOP obstruction. In an atmosphere of constant delays, it is commendable that Sen. Reid is taking action to get nominees confirmed, especially circuit court nominees.
Because of obstruction by Senate Republicans, nominations for the circuit court have been made particularly cumbersome. As we explained last month, if Senators refuse to provide “unanimous consent” to schedule a vote, Sen. Reid is forced to file a cloture petition to allow a yes or no vote on the nominee. Once cloture is invoked, Senate rules allow the minority to insist on “post-cloture debate”— up to 30 hours for circuit court nominees.
With six circuit court nominees now on the Senate calendar, (including the most recent addition, Fifth Circuit nominee Gregg Costa, who was recommended unanimously by the Senate Judiciary Committee this morning) and more in the pipeline, Republicans can tie the Senate up for 180 hours of needless “post cloture debate” – that is weeks of floor time that could be spent doing something useful. Time is growing short to get them all confirmed by the end of the year. One easy answer is for Senate Republicans to forego their delaying tactics and permit the Senate to both confirm judicial nominees and perform the other important work waiting to be done. Until that happens, Sen. Reid should be applauded for pushing the process forward.
Early this year, President Obama nominated Judge Beth Bloom, Judge Darrin P. Gayles, Judge Carlos Eduardo Mendoza, and Paul G. Byron to the Southern and Middle District Courts of Florida. Of the four vacancies in the Southern District, three have been declared judicial emergencies. The situation in Florida is so dire that even if every vacancy were to be filled tomorrow, it would not be enough to take care of the courts’ growing workloads. In fact, the Judicial Conference has requested a number of new judgeships for the state, including:
• 5 new judgeships for the Middle District, plus a temporary judgeship; and
• 3 new judgeships for the Southern District, plus the conversion of a temporary judgeship to a permanent position.
It is imperative that these nominations be confirmed swiftly; the Senate’s delays in confirming nominees translate to delays for Floridians waiting for their day in court.
Sen. Marco Rubio stated on NPR last month that he did “not anticipate having any objection to moving forward on any of [President Obama’s] nominees” for the district courts in Florida. In fact, the nominees were recommended by Sen. Rubio, along with Sen. Bill Nelson, based upon the recommendations of a bipartisan committee the two senators put together. Yet to date Sen. Rubio –unlike Sen. Nelson—has not signed the “blue slips” the Senate Judiciary Committee customarily requires before nominees are given a committee hearing. This is cause for some concern in light of Sen. Rubio’s refusal last year to sign off on other Florida nominees to seats that he himself had recommended.
Rubio’s slow-walking of his “blue slips” comes in the context of the GOP obstruction that has needlessly delayed the confirmation of most Obama nominees. After committee approval, President Obama’s district court nominees have been forced to wait an average of three times longer for a confirmation vote than President George W. Bush’s at this point in his presidency. Obama’s circuit court nominees are forced to wait nearly two months longer than Bush’s. This slowing down of the process seems completely gratuitous and politically motivated since the overwhelming majority of Obama’s judicial nominees have been confirmed unanimously or near-unanimously.
The current nominees are also important because they represent much-needed diversity in the federal courts. Gayles, for example, would be the first openly gay African-American man on the federal bench. However, with Rubio’s history of unfavorable treatment of previous nominees he has recommended, there is little expectation that he will help move this nomination process forward any faster. Gayles is up for the same seat to which William Thomas, also an openly gay African American man, was nominated in November 2012, a nomination that Rubio sabotaged.
Some were expecting these four Florida nominees (who were nominated in early February) to have their committee hearings this week, but because Rubio has not submitted his blue slips, that will not happen.
We join advocacy groups in Florida in urging Rubio to help get the state’s nominees confirmed as soon as possible.
Early this week, the Senate is scheduled to hold cloture votes on four judicial nominees, including Timothy Brooks, nominee for the Western District of Arkansas and Pamela Reeves, nominee for the Eastern District of Tennessee. Brooks and Reeves have been waiting for confirmation votes on the Senate floor since October 31 and November 14, respectively.
As we noted earlier this month, Republicans are routinely delaying nominations on the Senate floor by requiring Democrats to invoke cloture on every single judicial nominee and then piling on hours of unneeded “post-cloture debate” for each nominee who is called up for a vote. This practice creates a weeks-long backlog of nominees awaiting votes and prevents the Senate from moving on to other business. Nominees like Brooks and Reeves could have been confirmed within minutes after they were sent to the Senate floor last year. Instead, both of these nominations were sent back to the president in early January at the end of the first session of the 113th Congress to be re-nominated. After further needless delays in Committee, the nominees were finally placed on the Senate calendar only to wait an additional two months for consideration.
After the Senate has finally worked through the backlog of nominees to get to the Arkansas and Tennessee vacancies, Republicans are throwing up additional roadblocks, forcing Senator Reid to file cloture petitions, which will further delay their consideration. These nonsensical delays of well qualified nominees undermine the public’s faith in the Senate and create hardship for those seeking justice in the courts.
Last week, in advance of a Senate Judiciary Committee vote on six Arizona district court nominees, senior legislative counsel Paul Gordon asked if Arizona Senators Jeff Flake and John McCain would be able to convince their Republican colleagues to break what has become their practice of routinely delaying nominees’ votes. Since 2009, only five of President Obama’s judicial nominees had been allowed to have their committee votes cast without delay. Gordon urged the Senators to forgo this obstruction, especially given the enormous caseload in Arizona that is impeding the operation of the Arizona district court that has 6 of its 13 seats vacant.
Yesterday, in a departure from their practice, the Committee actually voted on the nominees. 91. 5 KJAZZ reported:
“The liberal advocacy group People for the American Way called this a step toward fixing the judicial vacancy rate in Arizona, but noted that there are 28 people awaiting confirmation ahead of these nominees.”
Executive vice president Marge Baker also commented on the turn of events in an interview with Cronkite News:
“It wasn’t sustainable to keep delaying this process, and it seems that Arizona senators finally heeded reason. Arizona has had a terrible judicial vacancy rate. This is an important step towards fixing it.”
This was a relief for the state of Arizona, as well as a nice change of pace for Senate Republicans. But as a judicial vacancy crisis continues in Arizona and across the country, the work is far from over.