The future just got a lot dimmer for the current crop of federal judicial nominees.
Senators left for their home districts in late September after confirming only three district court judges during the month, and they won’t be back until after the presidential election. After that, history and current circumstances are not on the side of the nominees, even if President Barack Obama is re-elected.
The Senate has punted a lot of its most important business — including addressing what senators are calling the “fiscal cliff” — mandated tax increases and spending cuts set to go into effect at the start of 2013 — to its upcoming lame-duck session. The busy calendar could further push aside the recurring cries for help from understaffed courts.
That means 33 of Obama’s judicial nominees for federal district and appellate seats across the country soon will have lost their chance to be confirmed before their nominations officially expire at the end of the year.
Historically, judges are almost never confirmed after a presidential election, and that will likely be the case again this year, said Russell Wheeler, a Brookings Institution fellow who has followed judicial confirmations for decades.
“I can only find one presidential election year in which there were any confirmations after Election Day,” Wheeler said. Three district court judges were confirmed after George W. Bush’s re-election in 2004. “I think at this point, this is probably it for these nominees for this time.”
There is still some hope. The right combination of election results and deal-making could result in a few more confirmations, although almost certainly not all of the pending district and circuit court nominees have a shot at being confirmed.
The 112th session of Congress has garnered a reputation for heightened partisanship that for the first time has affected the chances of even noncontroversial district court nominees. But there are grumblings among some senators that enough is enough.
Senator Pat Toomey (R-Pa.) wrote a letter on September 25 to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), urging confirmation votes for the two nominees for the Middle District of Pennsylvania.
The two vacancies “are of particular concern since the Williamsport courthouse is without a sitting judge and the district has been in a state of judicial emergency since 2009,” Toomey wrote.
Like the other nominees, if Matthew Brann and Malachy Mannion do not get votes this year, their nominations will expire, and the entire nomination process would have to start over again with a new session of Congress next year.
Other nominees are in that same position — nominated by Obama, fully supported by Republican senators from their home state, yet still stalled, said Carl Tobias, a University of Richmond School of Law professor.
Tobias pointed to Terrence Berg, a nominee for the Eastern District of Michigan, who was a federal prosecutor in the George W. Bush administration, as well as Richard Taranto, a nominee for the Federal Circuit who has gained support from Robert Bork, a co-chairman on Mitt Romney’s justice advisory board, and from Paul Clement, a solicitor general under Bush.
So far, that support hasn’t been enough. If Republicans lifted their block, the Senate could quickly confirm a flood of 15 district and four circuit nominees, each of whom has already been passed out of the Senate Judiciary Committee. But as recently as mid-September, Republicans blocked votes on these noncontroversial picks. And that’s not to mention the dozen district court nominees and two circuit court nominees still waiting for a vote in the committee.
The future of these nominees depends on the election results — both for president and in the Senate. Tobias said he expects only a few confirmations even if Obama is re-elected and the Democrats retain control of the Senate. “Reid might be at the point where he forces them through cloture,” he said. It’s less clear what will happen if Obama wins and Republicans gain control of the Senate. “They may just say, ‘You know, we won the Senate, let Obama renominate all of them,’ ” he said.
If Republican presidential candidate Romney wins, experts predict few of Obama’s 33 stalled selections will be renominated, at least during Romney’s term. As for Romney’s picks, a clearer path could lie ahead, despite likely Democratic opposition to many of them. “The GOP will want to allow the new president to have his new picks,” Tobias said.
Contact Todd Ruger at email@example.com.