President Barack Obama urged the Senate in his State of the Union address Tuesday to adopt a rule to expedite the confirmation process for judicial and public service nominees, which often has been stalled by partisan political battles.
Here is his proposal, from a White House transcript of his speech:
“Some of what’s broken has to do with the way Congress does its business these days. A simple majority is no longer enough to get anything -– even routine business –- passed through the Senate. Neither party has been blameless in these tactics. Now both parties should put an end to it. For starters, I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up or down vote within 90 days.”
Doug Kendall of the Constitutional Accountability Center praised the proposal, according to a Blog of Legal Times post, saying it “would benefit presidents of both political parties and the judiciary. Unprecedented obstruction by conservatives in the Senate have blocked even President Obama’s most uncontroversial judicial nominees, and has brought the judiciary to the breaking point.”
In the BLT post, Tony Mauro wrote that five Supreme Court justices were in the audience, and “Obama and the cameras largely ignored” them, unlike two years ago when the president criticized to justices’ faces the court’s Citizens United ruling.
“Obama … did decry the ‘corrosive influence of money in politics,’ but instead of blaming the high court, he pointed to several proposals for legislative fixes,” BLT reported.
Growing resistance by progressive groups and African-American lawmakers to two of President Obama’s nominees for the federal district court in Georgia has become a national news story. A New York Times article about the dust-up suggests it will not be receding any time soon.
Gavel Grab has mentioned the swirling controversy over the nominations of Georgia Court of Appeals Judge Michael Boggs and Atlanta attorney Mark Cohen. “The conflict is the latest twist in a struggle over confirmations,” the Times reports, highlighting both the limited ability of Democrats to push through judicial nominations after changing the Senate rules last year to make it easier to do so; and the ability of minority party senators to block judicial nominations through the Senate’s traditional “blue-slip” process.
Cohen has come under fire for successfully defending a Georgia voter identification law, and Judge Boggs for conservative stances when Read more
In the countdown to the Senate’s planned adjournment for the holidays, partisanship over judicial nominees has escalated again, and it has at least momentarily subsided too, and the nomination of Judge Robert Wilkins to the D.C. Circuit Court of Appeals may get a vote … but not until the New Year.
Because things can change hourly in the Senate at times like these, Gavel Grab will just attempt to capture the latest headlines of activity:
- NOMINATIONS HEARING: On Wednesday, Republicans used an obscure rule to block a Senate Judiciary Commission confirmation hearing on five judicial nominees, including candidates with support from Republicans. Sen. Patrick Leahy, D-Vt. and the chairman, became furious and threatened to consider changing committee rules. Then, Republicans dropped their objections and the hearing was re-scheduled for Thursday morning.
- PACKAGE DEAL? If Senate Democrats secure a deal with Republicans, four nominees including Judge Brian Davis for a federal district judgeship in Florida could get up-or-down votes before the Senate heads home for the holidays. Read more
As the U.S. Senate votes on a backlog of judicial nominations, President Obama’s White House is touting the president’s record for increasing diversity on the federal bench.
“The president wants the federal courts to look like America,” said White House spokesman Eric Schultz, according to a Wall Street Journal Washington Wire blog post.
The Senate had confirmed only one openly gay judge to the federal bench before Obama took office. In his administration, by contrast, the president has nominated 10 openly gay federal judges, and the Senate has confirmed seven of them.
In addition, the blog reported, 43 percent of Obama’s judicial nominees whom the Senate confirmed have been women, and that surpasses the rates of his predecessors. Last week, the Senate confirmed Patricia Millett and Cornelia “Nina” Pillard to the U.S. Court of Appeals for the D.C. Circuit, operating under new rules that curb the minority party’s use of filibusters to block nominations.
Now that the Senate filibuster rules have changed, many are wondering if that means the three nominees to the D.C. Circuit Court of Appeals will be quickly confirmed.
According to The Hill blog, the nominees most likely will be confirmed, but as one former senior administration official said, “…with some blood on the wall.”
Justice at Stake Director of Federal Affairs and Diversity Initiatives Praveen Fernandes says the change offers the potential for profound benefits for a federal judiciary plagued with a 10 percent vacancy rate. (Video: Fernandes discusses rule change implications)
Political fallout over judicial nominations is already being seen across the country.
The Washington Times reports that, “Conservative groups are looking to make the Capitol Hill battle over President Obama’s judicial nominees an issue in Senate elections in 2014 by arguing that red-state Democrats are ‘rubber-stamping’ liberal judges.”
The Judicial Crisis Network has already announced a round of ads attacking Sen. Mary L. Landrieu in Louisiana for supporting all of Mr. Obama’s judicial picks. The group warns that she and other Democrats will have to be careful going forward about which judges they approve.
Others believe the judicial fight likely won’t be a big issue in the 2014 elections.
“Unless the nominee is extremely controversial, which none of Obama’s have been, it’s a real stretch,” said Mark McKinnon, a GOP strategist. “Otherwise, it is expected that representatives vote for their party nominees. Generally, it’s just way off voters’ radar screens.”
Recent Senate action to eliminate filibusters of most nominees for federal judgeships is continuing to generate intense debate. The issue’s high profile is reflected in numerous media pieces, including a veteran legal journalist’s strong critique of an earlier commentary by a prominent federal appeals judge.
In The Atlantic online, Andrew Cohen takes issue with the opinion of Judge J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals, whose Washington Post op-ed said the rules change would leave a harmful and severe impact on the federal judiciary (see Gavel Grab). Judge Wilkinson’s views were summed up by the op-ed headline, “Bipartisan approval lends a sense of balance to the judiciary.”
According to Cohen, Judge Wilkinson’s essay “is a polemic against what Senate Democrats accomplished last week. It frets about the possibility of future partisanship while ignoring the devastating impact recent Senate partisanship has had upon the nation’s judges. Worse, it omits the judge’s own role in a version of this fight that unfolded at the end of the Clinton administration. Judge Wilkinson, it turns out, isn’t exactly an impartial witness in this dispute.” Read more
A harmful, severe impact on the federal judiciary will result from a Senate rules change eliminating filibusters of most nominees for judgeships (see Gavel Grab), a prominent federal appeals court judge says.
J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals, who was among finalists considered by President George W. Bush for elevation to the U.S. Supreme Court, gives his opinion in a Washington Post op-ed entitled, “Bipartisan approval lends a sense of balance to the judiciary.”
Wilkinson writes that the rules change eliminated a balancing impact of the prior requirement for bipartisan support in order for a lower-court or appeals court judge to be confirmed: “Given that the ballot box is an imperfect guarantor of the bent or character of judicial appointments, any incentive to place jurists of moderate persuasion on the courts must come from the need to attract Senate support across the aisle. Last week, that need was much diminished.” Read more
U.S. Senate Majority Leader Harry Reid is considering, in the wake of Senate Republicans’ recent derailment of three of President Obama’s nominees for a highly influential appeals court, calling for a vote that could make it harder for the minority party to filibuster a president’s nominees.
If Reid seeks the vote and it is successful, the shift in rules likely would apply to federal judges and executive branch appointees such as cabinet members, but not Supreme Court justices, the New York Times reported.
Critics have called such a vote the “nuclear option” because it would upend Senate tradition and is highly controversial. The term refers to employing a simple majority vote to revise filibuster rules, rather than the 67-vote majority typically required under Senate rules for such a change.
To learn about Senate Republicans blocking three nominees to the U.S. Court of Appeals for the District of Columbia Circuit along largely partisan lines, see Gavel Grab. On PBS, meanwhile, a Newshour segment focused on the impact of blocked judicial nominations. It included an exchange of views between Caroline Fredrickson, president of the American Constitution Society for Law and Policy, and Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.
With Senate votes on D.C. Circuit Court nominees Cornelia Pillard and Robert Wilkins looming, the superheated political atmosphere around the nomination process (see Gavel Grab) gets an examination in a New York magazine piece. The article, entitled, “What’s at Stake in the Nuclear Showdown,” notes that the D.C. Circuit Court’s “unique importance” has intensified the battle over President Obama’s nominees. Of particular interest is the court’s likely role at the center of a fight over climate-change policy. The piece notes that the Environmental Protection Agency is expected to issue regulations on existing power plants, and an anticipated challenge to those rules would land in the D.C. Circuit’s docket. According to Senate staff sources, a cloture vote on the Pillard nomination is expected at 5:30 pm today. Depending on whether Democrats are able to garner the 60 votes required to end debate and proceed to a vote on the merits of the nomination, there may also be a subsequent up-down confirmation vote.
Meanwhile, an article in Politico notes that opponents of the current D.C. Circuit nominees are taking hardball tactics to Senators’ home states. The conservative Judicial Crisis Network will begin airing television ads in Arkansas targeting U.S. Senator Mark Pryor’s support for the nominations. The unusual ad campaign is reportedly being run at a cost of over $100,000, and targets Pryor ahead of a 2014 reelection bid.
U.S. District Court Judge Robert Wilkins was easily confirmed to the bench in 2010, but his nomination for the U.S. Court of Appeals for the District of Columbia is likely to generate more controversy at a Senate hearing next week.
The Blog of Legal Times made that forecast. It also renewed widespread speculation that if Senate Republicans move to block all three of President Obama’s recent nominees to the D.C. Circuit Court, it could bring a showdown with Democrats and a move by the latter to change rules over filibusters of judicial nominations.
Judge Wilkins faces a hearing of the Senate Judiciary Committee on Wednesday. You can learn about the recent hearings of Obama’s other two nominees by clicking here for Gavel Grab posts about Patricia Millett and by clicking here for posts about Cornelia Pillard.