As we approach the end of the first session of the 113th Congress, it's important to take stock of the toll that Republican obstruction has taken on the Senate's judicial confirmation process. Since President Obama took office, Senate Republicans have been exceptionally active and persistent in coming up with ways to block or delay his judicial nominees, a project that reached its apex this year.
Since 2009, Republicans have lived up to the Far-Right demand that they function as a “resistance movement ” rather than as partners in an electoral democracy. That would include their menu  of abuse of the filibuster and filibuster equivalents, needless holds on committee votes, refusal to cooperatively recommend nominees to the White House, and abuse of the “blue slip” policy. During President Obama's first term, Senate Republicans forced judicial nominees to wait an average of three times as long after committee approval for a confirmation vote from the full Senate as did President George W. Bush's first-term nominees.
Over the last year, Obama's reelection drove the GOP to even greater acts of obstruction. Last spring, when President Obama announced his intention to fill the three existing vacancies on the DC Circuit, Republicans signaled their intention  to stonewall the nominees no matter who they were. They just didn't want a Democratic president naming judges. This was part of a larger campaign of nullification  of laws and election results they don't like. Democrats were provoked into changing the Senate's filibuster rules in exactly the same way that Republicans proposed when Bush was president. Apparently, what's good for the goose isn't good for the gander, because Republicans from that point forward have escalated their obstruction to heretofore unseen levels.
We have counted six ways that Republicans are escalating their abuse of Senate Rules to prevent presidential nominations from going forward.
1. Denying a committee quorum: Under the Judiciary Committee's rules , it can't vote on a nominee unless at least eight of the committee's 18 members are present, including at least two from the minority party. On November 21, the GOP committee members just didn't show up for a scheduled meeting to vote on ten judicial nominees, leaving the Democratic members unable to conduct business – and leaving federal courts around the country that much further from being fully functional.
2. The two hour rule: Under a rarely-invoked Senate rule, committees can't meet more than two hours after the Senate goes into session. Routinely, senators give unanimous consent to waive the rule so committees can carry out the chamber's – and the country's – business. But twice this month, Republicans invoked this rule to block the Judiciary Committee from meeting.
The first time was December 12, when the committee was set to vote on 15 judicial nominees (including the ten who had been blocked before Thanksgiving). The committee was finally allowed to meet a week later, on December 19, but even then the previous delays had a consequence: Republicans pointed out that this was technically the first meeting that these nominees were on the agenda to be voted on, so they invoked their right under committee rules to demand without explanation a one-time delay in voting until the next meeting. Of course, this was really the second time around for five of these nominees and the third time for ten of them.
And since the next committee meeting will be held next year, that means it will be a new session of Congress, which introduces another opportunity for obstruction (more on that later).
The GOP played the two-hour card again  on December 18, this time preventing a hearing on five consensus district court nominees from Kansas, California, Maryland, and Maine. The nominees' families had come to Washington at their own expense to share an incredible moment in the lives of their loved ones. (It is always a joy to see the beaming faces of the spouses, siblings, and often-restless children who routinely come to these hearings, usually creating a packed hearing room.) They showed up for the hearing only to find out that Republicans had decided to prevent it from happening. Fortunately, after committee chairman Patrick Leahy threatened to change committee policies, they allowed the hearing to occur the next day.
3. Continued blue-slip abuse: Chairman Leahy's current policy is to give each senator an absolute veto over judicial nominations in their home states. If one or both of a nominee's home-state senators fail to submit a “blue slip” signaling their approval of allowing the committee to process the nomination, Leahy will not even hold a hearing on the nominee, let alone a committee vote.
Senate Republicans have frequently abused the “blue slip” process to prevent President Obama's nominees from even starting the confirmation process. Ten of the nominees currently in committee can't get a hearing because they are being blocked by their home-state senators. Five of these are nominees for long-vacant judgeships in Arizona that have been formally designated as judicial emergencies. Sen. Jeff Flake is blocking all five from hearings, but refuses to say why.
North Carolina Sen. Richard Burr is blocking the nomination of Jennifer May Parker, who would be the first African American federal judge in that state's Eastern District. Because of obstruction by South Carolina Sens. Lindsey Graham and Tim Scott, nominees Bruce Howe Hendricks and Alison Renee Lee have been languishing without a hearing since they were nominated in June. Georgia's Sens. Saxby Chambliss and Jonny Isakson refuse to return their blue slips for Eleventh Circuit nominee Jill Pryor, whom they had previously said was qualified for a lifetime federal judicial appointment; after nearly two years, they have yet to give their reasons.
But perhaps the most outrageous example of blue slip abuse comes from Florida's Marco Rubio, who recommended William Thomas for a district judgeship, then refused to submit his blue slip so he could curry favor with a right wing that grew suspicious of him on immigration issues. The reasons Rubio cites for his opposition are so ludicrous and demonstrably false that local prosecutors and even a local judge have written to him to correct the record.
Fortunately, Leahy has signaled  that he is ready to consider reforming committee policies if Republicans continue their aggressive and escalated obstruction.
4. Filibustering consensus nominees: Normally, senators filibuster nominees whom they oppose. Sometimes, even a senator who opposes a particular nominee will vote to end the filibuster if they feel that the Senate should be allowed to hold a yes-or-no vote. But during these past two weeks, Republican senators have been filibustering nominees whom they supported in committee and whom, when their nominations reach a yes-or-no vote, they overwhelmingly vote to confirm.
Now that the Senate's rules allow a simple majority to break a filibuster of most nominations, Republicans have been filibustering nominees just to waste the Senate's time.
Four consensus district court nominees from New York, New Hampshire, and Montana who cleared the Judiciary Committee without opposition months ago faced nearly unanimous Republican filibusters last week…before being confirmed hours later by large bipartisan majorities of 77-19, 75-20, 79-19, and 70-29. It is hard to find principled opposition in those numbers.
5. Counting down the hours: Once a cloture motion succeeds in ending a filibuster, Senate rules allow a certain amount of time for debate before a final confirmation vote, up to 30 hours for circuit court nominees and up to two hours for district court nominees. Over the past two weeks, as Republicans forced cloture vote after cloture vote on judicial and executive nominees, they insisted on eating up every minute of available time before allowing the confirmation vote.
As Republicans were forcing the Senate to spend time on nominations rather than budgetary and legislative issues, conservatives were busy condemning the Democrats for – wait for it – making the Senate spend so much time on nominations rather than budgetary and legislative issues. Because of GOP insistence on using every possible post-cloture hour for circuit, district, and executive nominees, senators were forced to pull all-nighters to get their work done. When Nina Pillard was nominated to the DC Circuit last spring, she probably didn't expect that her confirmation vote would take place at 1:00 am on a night in December.
6. Returning nominations to the president: Under Senate rules, any nominee not confirmed by the end of a session of Congress has their nomination returned to the White House. The president then renominates them, and they must go through the relevant committee again (though not necessarily with a hearing if they already had one). Since this is an enormous waste of time and resources, this rule is regularly waived by the unanimous consent of the Senate. So, for instance, at this point in George W. Bush's administration (between the first and second session of the 109th Congress), only one of the 18 judicial nominations then pending was returned to the president.
And this time? There are 53 nominees for current judicial vacancies who are somewhere in the Senate confirmation process. (There are also three for future vacancies.) Of these, we expect Republicans to demand that all but one be returned to the president for re-nomination. That includes:
- 9 nominees who have been waiting for a floor vote that Republicans will not allow;
- 15 nominees who would have been approved by the Judiciary Committee and thus eligible for confirmation votes if the GOP had allowed the committee to meet; and
- 10 individuals who can't even get a hearing because of GOP abuse of the blue slip policy.
[Note: The one nominee we expect not to be returned, Judge Robert Wilkins for the D.C. Circuit, cannot be sent back to the White House because a motion to reconsider the cloture vote on his nomination is currently pending.]
The Senate likes to consider itself the world's greatest deliberative body. But it's hard to say that with a straight face when the minority party is preventing senators from learning about nominees in committee hearings. Or when Republicans prevent the Judiciary Committee from meeting to discuss the nominees and debate whether to advance them to the full Senate. Or when GOP senators presumably have concerns with a nominee but abuse the blue-slip policy to prevent the committee from asking the nominees about those very issues.
Senate Republicans have made great efforts to block President Obama's nominees, often in little-known or little-noticed ways. The cost is high to the nominees and their families, to our nation's system of justice, and to the Americans who rely on a functioning court system to guarantee their day in court.