On November 29, veteran Senator Charles Grassley (R-Iowa), the Senate Judiciary Committee’s ranking member during the 112th Senate, eschewed a valuable opportunity to temper the “confirmation wars” that have troubled judicial appointments for 25 years. At the first panel meeting of the lame duck session, Grassley exercised the minority party’s prerogative to hold over committee votes on five well-qualified consensus nominees for a week. The senator should have seized this opportunity and allowed votes because Republicans must cooperate with Democrats in swiftly filling the 82 lower court openings, which undermine the delivery of justice.
For the past quarter century, Democratic and GOP charges, recriminations and paybacks have plagued selection, primarily due to divided government. Democrats currently control the presidency and the Senate, but they should work together with Republicans to stop or ameliorate this unproductive cycle. That dynamic persisted across the 111th Senate. Senator Jeff Sessions (R-Ala.), whom Grassley succeeded as ranking member in 2011, regularly held over panel ballots for seven days for many strong uncontroversial nominees without convincing reasons.
At the November 29 meeting, Grassley continued the practice, essentially stating that this is how the minority always treats nominees whom the committee considers for the first time. To Grassley’s credit, since becoming ranking member, he has recognized that the high number of opening makes imperative GOP and Democratic cooperation and promised to move consensus nominees. Although Grassley rejected the opportunity to end the automatic invocation of holds, he should seriously consider modifying a procedure that unnecessarily slows processing. When hearings and Republican investigations demonstrate that nominees have wide support and lack controversy, Grassley should agree to vote the initial time when Democrats schedule ballots.
The 679 district judgeships, 67 of which are vacant, are essential because district judges hold federal trials and determine the facts. Obama has tendered 171 nominees of balanced temperament, who are smart, ethical, diligent and independent and diverse vis-à-vis ethnicity, gender and ideology. He has thoroughly consulted by seeking advice from Democratic and Republican home-state politicians before actual nominations. Obama has cooperated with Senator Patrick Leahy (D-Vt.), the committee chair, who schedules hearings and votes, Senator Harry Reid (D-Nev.), the majority leader, who arranges floor debates and votes, Grassley and Senator Mitch McConnell (R-Ky.), the minority leader, to facilitate confirmation. Grassley can treat his concern about the 82 openings and his vow to advance consensus nominees by urging that the full Senate expeditiously consider the five nominees who were set for votes on November 29 and prevailing upon McConnell to rapidly agree on final votes. Senators have approved 129 Obama nominees, so they must quickly conclude processing the 36 present nominees, while the administration must promptly choose nominees for the remaining 31 vacancies.
The 179 appellate court judgeships, 15 of which are empty, are crucial because regional circuits are the courts of last resort in their areas for 99 percent of appeals. Most problematic is the D.C. Circuit with vacancies in three of 11 judgeships and the Tenth Circuit with openings in two of 12. Obama has selected 41 superb nominees. The Senate confirmed 30, so it must speedily complete evaluation of the seven current nominees, while Obama must swiftly tap nominees for the other eight openings.
The vacancies in nearly 10 percent of judgeships erode justice. Accordingly, Obama must expeditiously nominate, and senators rapidly approve, many outstanding judges. Grassley has a fine chance to create a bipartisan tone by voting for the five nominees whom he held over, by permitting ballots on well qualified, noncontroversial future nominees the first time they are scheduled and by facilitating all nominees’ floor action.
Carl Tobias is the Williams Chair at the University of Richmond School of Law.