Judicial Nominations

by Jeremy Leaming

The Senate may soon vote on one of the 19 judicial nominations that were left pending before members recessed in August for electioneering. Even if it does take a bit of time to confirm a judicial nominee, the Senate still has a long way to go to fill a large number of vacanices on the federal bench, which were caused primarily by Senate Republicans' obstructionism.

Some continue to write that the Obama administration has failed to put forth enough nominations for the federal bench. But that’s merely reciting a right-wing or Sen. Chuck Grassley (R-Iowa) talking point. It doesn’t add much anymore to the conversation. The Brookings Institution's Russell Wheeler noted earlier this year in a progress report on judicial nominations that while Obama, at that point in his presidency had made fewer district court nominations than Presidents Bill Clinton and George W. Bush, he had also made more circuit court nominations.

The only point that matters is that the federal bench has a high number of vacancies – more than 80, and many of them are judicial emergencies – not because of the number of nominations made, but the number of nominations stalled. Moreover, as an unnamed White House aide told The Huffington Post, it doesn’t make a difference as to when the nominations are made, as long as the Senate continues to obstruct. (Yes, The Post piece cited also includes the lame line about Obama not nominating enough folks for the federal bench.)

The 19 pending nominees have already been run through the Senate Judiciary Committee, and are ready for an up-or-down vote on the Senate floor. Regardless of the battle to reach a budget deal to avoid a so-called fiscal cliff, consideration of these nominees would not take much floor time if the Senate were properly functioning.

“There is no justification for holding up final Senate action on the 19 judicial nominations that have been approved by the Senate Judiciary Committee and are pending on the Senate Executive Calendar,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) in a Nov. 30 statement. “President Obama has consistently reached across the aisle, consulted with home state senators from both parties and appointed moderate, well-qualified judicial nominees. It is time for the obstruction to end and for the Senate to complete action on these nominees so that they may serve the American people with further delay. Delay for delay’s sake is wrong and should end.”

by Jeremy Leaming

Senate Minority Leader Mitch McConnell has stridently led obstructionism since Barack Obama won the presidency in 2008. The senator, as many have noted, claimed his Party’s top initiative during President Obama’s first term was to ensure he would not serve a second. That initiative failed miserably.  

But McConnell, representing a solid red state, has nothing to fear from refusing to change, so he’ll continue to scuttle or slow the president’s judicial and executive branch nominations and likely any policy advanced by the administration. One of McConnell’s greatest tools is the threat of a filibuster, essentially requiring 60 senators to allow floor action on a whole range of matters. Posting for The Washington Post’s Wonkblog, Ezra Klein says changing the filibuster will not “fix the Senate,” but explains why McConnell is “furious” about renewed discussion of blunting the tool McConnell has used to make the Senate virtually useless. (Klein also notes hypocrisy of politicians on both sides of the argument – at one time McConnell supported changing the filibuster, and Sen. Harry Reid, now the Majority Leader, opposed altering it.)

But things have dramatically changed since McConnell was a leader in the majority. The filibuster once a rarity has become all too frequent. As Michael McAuliff noted for The Huffington Post, Reid has “faced 385 filibusters during his leadership while Lyndon Johnson had to deal with only one when he ran the Senate.”