The scene has become familiar in the U.S. Senate: A nominee for a federal judgeship lingers for months without a confirmation vote, held up by an anonymous objection, but, when the roll is eventually called, not a single senator votes against the nominee.
Long waits, followed by unanimous confirmation.
Republicans have been able to use the Senate’s rules to frustrate President Barack Obama’s judicial nominees, defying expectations from a year ago that the GOP’s small minority would leave them with little leverage. Each nominee, even those who are not controversial, has become a drawn-out battle.
It’s a strategy that’s proven effective in part because Democrats haven’t pressed the issue. Focused on a legislative agenda topped by health care, senators have rarely tried to force votes, and Obama, unlike his Republican predecessor, doesn’t highlight judicial nominations in public. Republicans haven’t needed to take a public stand in order to delay nominees.
The White House is hoping to change that by picking up the pace of nominations. The process stalled in Obama’s first year, but the president has nominated 15 district court judges in the past two months, as many as he nominated in the first 11 months of his term.
So far, the debate has been a sharp contrast with the judicial wars of the past administration when Democrats held up many of President George W. Bush’s nominees with noisy debates on the Senate floor, and Bush rebuked the senators in speeches. In a move dubbed the “nuclear option,” Republicans considered changing the Senate’s rules to prevent filibusters.
This time around, “Republicans have been putting holds on the nominations, and the Senate leadership has said, ‘We’re not ready to take that on yet,’ ” said Russell Wheeler, a visiting fellow at the nonpartisan Brookings Institution.
Responding to criticism from liberal activists who want Obama to be more public on the issue, White House officials said he’s done a lot behind the scenes. “The calls for the president to have a speech in the Rose Garden, or do something like what President Bush did — there’s a lot that people don’t see, in terms of having conversations with senators,” said one administration official who works on judicial nominations.
Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the U.S. Court of Appeals for the 3d Circuit, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0.
“He should have been confirmed last year, and he would have but for Republican objection,” said Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, in remarks prepared for the Senate floor.
Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition.
Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointments to the federal bench. “We need to do our homework. Do our background. See what the bar association says. See what the FBI says,” said Sen. Jeff Sessions (R-Ala.), the top Republican on the Judiciary Committee, at a Feb. 11 hearing.
ANATOMY OF DELAY
The delays for nominees start in the Judiciary Committee, where it has been a matter of routine for Republicans to exercise a committee rule that allows for postponing a vote by one meeting. The next meeting might be in a week or, if there’s a scheduled recess, in several weeks.
Once the nomination hits the Senate floor, scheduling a vote requires the unanimous agreement of all senators. A single senator can send word, either directly or through an intermediary, to Majority Leader Harry Reid (D-Nev.) that he or she objects to scheduling a vote. That leaves Reid to decide whether to force the issue, at the risk of delaying other nominations or legislation. The names of the objecting senators are rarely made public, and efforts to bring transparency to the process have sputtered.
An extreme example of the objections, or “holds,” came this month when Sen. Richard Shelby (R-Ala.) imposed a blanket delay on all pending Obama nominees because of threats to defense projects in his state. He lifted the objection days after it became public.
“It has become a low-intensity conflict, a low-profile conflict,” said Wade Henderson, president of the Leadership Conference on Civil and Human Rights.
Conservatives say that such delays should not be cause for alarm. “Republicans are not going out of their way to make it easy,” said Curt Levey, executive director of the Committee for Justice. But, he added, “If someone is confirmed six months after they’re nominated, that’s pretty par for the course.”
The contrast to the Bush years shows up in numbers Wheeler has compiled. All of Obama’s circuit court nominees have received Judiciary Committee hearings, while only about a quarter of Bush’s had during a comparable period in his first term, when Democrats held the Senate. But among circuit court nominees who have been confirmed, Obama’s have waited longer: an average of 213 days from nomination to confirmation, compared to 141 days for Bush nominees. (Wheeler’s numbers are as of Feb. 5.)
“President Obama doesn’t have a problem at all with his first hurdle,” said Makan Delrahim, a partner at Brownstein Hyatt Farber Schreck who led the Judiciary Committee’s Republican staff from 2000 to 2003. “President Bush did, for half of his time in power. Who was able to get a hearing and get a vote in committee was dictated by the other party.”
One nominee for Washington’s local trial court, Marisa Demeo, has been waiting nine months for a Senate vote, the longest of any Obama judicial nominee. Sen. Jim DeMint (R-S.C.) objects to her experience working for the Mexican American Legal Defense and Educational Fund and other advocacy groups. Among pending nominees for the circuit courts, 4th Circuit nominee Barbara Keenan has been waiting the longest. A justice on the Virginia Supreme Court, she was endorsed by the Judiciary Committee four months ago and has not faced any public opposition.
Some liberal advocates fear that time is slipping away because a U.S. Supreme Court vacancy this summer would consume much of the Senate’s time — as did the confirmation of Justice Sonia Sotomayor last summer.
“It’s time for the White House to lean on the Senate, as well as to send up additional names,” said Nan Aron, president of the Alliance for Justice. “There’s much more the president can do to put a priority on judgeships, particularly given the fact that much of his agenda may well be challenged in the federal courts.”
Obama did not directly address judicial nominations in his State of the Union address in January, saying only that “the confirmation of well-qualified public servants shouldn’t be held hostage to the pet projects or grudges of a few individual senators.”
A second White House official who works on judicial nominations said the administration has “hit a procedural stride” in selecting nominees after a year during which Obama nominated about half as many judges as Bush did during the comparable period of his presidency. Obama has not nominated a circuit judge since Nov. 4 when he picked James Wynn and Albert Diaz for the 4th Circuit.
With more nominees awaiting Senate action, this official said obstruction by Republicans will become more visible.
“As there are more in the pipeline and it’s looking more and more clogged,” the official said, “public attention will be more focused on the slowness of floor action.”
David Ingram can be reached at firstname.lastname@example.org.