Judicial Nominees Awaiting Their Day in Court

By Jason Dick, CQ Roll Call

Sen. Michael B. Enzi had something to say, and it didn’t fit neatly into the script for a recent episode of Objection Theater.

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Enzi  (Bill Clark/CQ Roll Call)

Democrats asked to confirm a bundle of judges. Republicans said no. Everyone knew where the plot was leading.

Then Enzi made his entrance, stage left.

“I want to inject a few comments in this discussion too,” the Wyoming Republican said, interrupting the otherwise rote and increasingly familiar ritual: Democrats asking their colleagues to seat several district court nominees, followed by Republican leaders shooting them down — most of the time.

“This isn’t all just about Republicans. This isn’t all about Democrats,” Enzi continued, recounting a time when a district court nominee from Wyoming got stuck in the judicial nomination limbo that periodically takes hold in the Senate — and results in a backlog of empty federal benches and hard feelings on both sides of the aisle.

“It took me about nine months to get a hearing for him. And you know, at the end of two years he had not gotten a vote in committee. His life was in suspense for two years. That’s not right. Neither party should do that,” Enzi said.

And so it was that on April 26, a senator known as one of the chamber’s most taciturn members gave voice to a near-universal frustration among his colleagues: trying, and usually falling short, to ensure the country’s courthouses have enough federal judges to administer justice.

Kabuki, Interrupted

Enzi’s moment was a bit of a surprise not just because of the senator’s mild-manners but also for the impromptu nature of his remarks in a legislative body increasingly defined by scripted spectacle.

The Democrats, under the aegis of Sen. Charles E. Schumer’s Democratic Policy & Communications Center, blasted out notice on the morning of April 26 that their members would seek unanimous consent to confirm several “qualified judicial nominees for courts across the country — including nominees who have been waiting over a year for a confirmation vote,” their statement said.

It would happen as senators broke for their traditional Tuesday policy lunches. That’s the day when the press contingent in the chamber swells as reporters attempt to catch senators moving freely from office to floor to lunch. The scene culminates in the two parties’ leaders hosting post-meal press conferences in the Ohio Clock Corridor, just outside the chamber floor.

Sen. Mazie K. Hirono kicked things off just before 12:30 p.m. The Hawaii Democrat asked to clear the 11 district court nominees on the Senate’s Executive Calendar, where nominees and treaties wait for floor votes, by unanimous consent. Majority Leader Mitch McConnell was waiting for his familiar cue.

“The core question here is whether President Obama has been treated fairly, and I think it’s noteworthy that at this point in President Bush’s eight years, 303 of his judicial nominees had been confirmed. At this point in President Obama’s term, 324. So that’s 21 more judges that the president, the current president, has gotten at this point than President Bush. So clearly President Obama has been treated fairly and therefore I object,” McConnell said.

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(Randy Leonard/CQ Roll Call)

Schumer and Sen. Benjamin L. Cardin then gave it a whirl. McConnell and later Majority Whip John Cornyn of Texas, who tagged into the ring to relieve McConnell, continued with Objection Theater.

Hirono had heard enough, and voiced both Democrats’ frustration and their counter-argument to McConnell.

“This is certainly, mind you, not about whether the president is being treated fairly. It is about the Senate doing its job,” she said.

A Look at the Numbers

It’s not uncommon for senators to fight over the pace of confirming presidential nominees, be they judges, U.S. Postal Service governors or Coast Guard officers.

This Senate has confirmed, as of April 30, fewer judges and civilian appointees than any other Congress at this point in the last 30 years, according to a new Congressional Research Service report.

Example No. 1 for Democrats is the nomination of Merrick Garland to the Supreme Court, which has been held up by partisan sniping.

But while Republicans have been in near-lockstep in putting the brakes on the elevation of Garland, now chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to the high court, they aren’t quite so enthusiastic about holding off on confirming nominees to the district courts that serve their home states.

U.S. courts have 67 judicial vacancies at the district court level. President Barack Obama so far has nominated replacements for 44 of those slots. On the Senate’s executive calendar, 11 of those district court nominees wait for a confirmation vote on the floor, the 11 Hirono initially sought to confirm.

All 11 were approved by voice vote in the Judiciary Committee, indicating little-to-no controversy over their qualifications or any other hang-ups.

Of the 11, three would address what the U.S. court system defines as a judicial emergency. That’s when the court filings exceed the ability of the judicial system to keep up with demand in a timely manner.

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(Randy Leonard/CQ Roll Call)

For a district court, that is defined as a vacancy where there are more than 600 filings for each judge to hear. It could also mean there has been a vacancy for more than 18 months, which allows the definition to encompass fewer filings.

There is also an emergency if there is more than one authorized judgeship but only one active judge. The latter pops up more often in less populated, rural states where Republican senators dominate.

Case in point is the nomination of David C. Nye for the open federal district court judgeship in Idaho. In early April, the president nominated Nye, and the Gem State’s two Republican senators, Jim Risch and Michael D. Crapo, eagerly pushed for a quick confirmation.

“As I have told the president, I am committed to working diligently and enthusiastically to obtain the consent of the Senate for Judge Nye’s confirmation,” Crapo said in a joint statement with Risch.

Later on in the month, Risch expanded on how deep the need was. He cited both the court’s high caseload as well as the fact that one of the two judges hearing district court cases, Edward J. Lodge, was on senior status, “and has been for some time,” Risch said. Nye would replace him. (Senior judges retain their seats on the bench but may cut back their caseloads by as much as 75 percent, according to the Administrative Office of the U.S. Courts.)

Risch sounded resigned to how long the process might take.

“We’ve been talking with leadership and the Judiciary Committee on getting him scheduled because he’s one that should be confirmed relatively easily,” Risch said. Then he shrugged, before continuing. “As you know how things move around here, it’s at a snail’s pace. All we can do is continue to press them,” he added. “It isn’t just a judicial emergency, it is a serious judicial emergency.”

A Chorus of Frustration

Risch isn’t alone among Republicans in pressing for speedy confirmation of the president’s district court nominees.

Sen. Patrick J. Toomey scrambled the Objection Theater script on May 11 when he asked for unanimous consent to confirm two district judges in his state of Pennsylvania, Susan Baxter and Marilyn Horan. “No vacancies have been outstanding for as long as these two vacancies,” Toomey pleaded. In the preceding weeks, Democrats had attempted to confirm them with the other nine district court nominees on the Executive Calendar, only to be blocked by GOP leaders on the floor.

This time, though, McConnell didn’t have to object.

In the type of only-in-the-Senate move that defines the chamber’s arcane parliamentary maneuvers and strategy, Sen.Sheldon Whitehouse, the Democrat from Rhode Island, objected to Toomey’s request unless Toomey amended it to hitch the other nine nominees to his request.

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At that point, McConnell objected — but to Whitehouse’s request. That led to Whitehouse objecting to Toomey’s request to confirm Baxter and Horan, a strange spectacle for those used to hearing Democrats talk about the need to confirm judges.

Whitehouse said the judges should be taken in order. Regardless, the stalemate continued, and Toomey added to the voices of frustration.

“I’m just trying to find a way to get somewhere between zero and 11, neither of which is acceptable. So this is a very frustrating and disappointing moment,” Toomey said.

A couple of hours after that exchange, the Senate agreed to move forward with the nomination of Paula Xinis to be a district judge in Maryland. Democrats had made moving Xinis a top priority, and her nomination would address a judicial emergency.

In the weeks leading up to the recent series of impasses, Republicans have gone on the record to try to push nominees who would serve their states.

“Suzanne’s and Scott’s background and work in Oklahoma make them uniquely qualified to serve our state as federal judges,” Sen. James Lankford told the Judiciary Committee on April 20 about the nominations of Suzanne Mitchell and Scott Palk. The Oklahoma Republican then released a statement urging the Senate to confirm them, outlining how he had worked with his fellow Republican, James M. Inhofe, and the White House to make their December nominations happen.

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Ditto for Sen. Orrin G. Hatch, a former chairman of the Judiciary Committee.

“I urge my colleagues to approve Ron’s nomination promptly,” the Utah Republican said at that same hearing, referring to Ronald G. Russell, who was also nominated in December.

Later that month, Obama nominated Regina Rodridguez to serve on Colorado’s federal district court.

Republican Sen. Cory Gardner was there for her.

“Her experience is a testament to her qualifications to serve on the federal bench, and the opportunity to meet with her provided me further confirmation of that. I applaud the progress made to fill the vacancy and look forward to working toward Regina’s confirmation,” Gardner said in a statement on April 28.

The list goes on.

That hasn’t gone unnoticed by Senate Minority Leader Harry Reid.

“Even district court nominations supported by Republicans seem too hard for this group to get accomplished,” the Nevada Democrat taunted Republican leaders on the floor on April 18.

Backed Up on Capitol Hill

So what’s the hold-up?

According to Judiciary Chairman Charles E. Grassley, who has taken his lumps by refusing Garland a hearing, it’s a combination of things.

The Iowa Republican says he will abide by precedent in eventually shutting down the confirmation process during a presidential election year, although the definition of precedent regarding Supreme Court, appellate and district court nominees is a source of much debate among senators.

For the time being, though, Grassley says he will continue to schedule hearings and votes for nominees “in the order of the way they come up from the White House,” assuming they’re qualified and both home-state senators sign off on the nomination. (Senators signal their approval of nominees through returning a blue slip of paper distributed by the Judiciary chairman, a process known as blue-slipping.)

He says he’s open to considering, out of order, district court nominees who would address judicial emergencies as well.

“You can’t have justice in 49 states and not in a 50th state,” he says.

But ultimately, McConnell sets the floor schedule.

“Whatever I do that’s beyond what I gave you is going to have to be, ‘Is McConnell going to take it up?’ ” Grassley says. “If it’s a real serious situation, is he going to take it up? Because why should I take things out of order if they aren’t going to be brought up on the floor?”

McConnell isn’t in any rush.

“I would say to my Democratic friends, no effort to kind of redefine what this is about will be successful,” the Republican leader said. “We are to a point where we know that so far during the Obama years, he’s gotten 23 more judges than President Bush got to this point. Now that’s the fundamental question,” he emphasized.

Not so fast, Democrats said. They say the raw number is less important than the overall functioning of the judiciary. They point to the number of judicial emergencies, 29, and the 87 overall vacancies in the system.

By comparison, Democrats cite their confirmation of 68 judges during the last two years of the Bush presidency, when they, the opposition party, controlled the Senate.

So far in this Congress, the Senate has confirmed 17.

“We all know it’s the job of the Senate to keep up with the need to confirm judges, but our friends on the other side of the aisle aren’t holding up their end of the bargain,” Schumer said on the floor.

Minority Whip Richard J. Durbin was even more pointed. “Let’s talk about their record in the Senate. Can I share with you their record in the Senate? If you look on the desk of most senators, you’ll find an Executive Calendar. It’s an obituary. It’s a political obituary,” the Illinois Democrat said on May 10 at a Democratic leadership news conference.

Enzi’s Lament

And who was the judge who prompted Enzi’s statements?

That would be Richard Honaker. He was nominated by George W. Bush on March 17, 2007, and didn’t receive a Judiciary Committee hearing until Feb. 12, 2008. That’s as far as the confirmation process got for him.

For all the Democratic arguments that they played fair and confirmed more of Bush’s picks during his last two years, Honaker was one of the nominees who slipped through the cracks during a time that mirrors the current congressional-White House dynamic.

But far from saying turnabout was fair play, Enzi pleaded to go beyond simple partisanship.

“As long as the other side is saying that we’re holding things up, I’ve got to point out that it’s not just a one-sided thing. So I hope that some of the criticism can end and some of the work can be done,” Enzi said.

Cardin, interrupted from the rituals of Objection Theater, seemed taken a little aback. “I want to share the frustration of my colleague from Wyoming,” he said, adding, “I agree it’s wrong to hold people’s lives in abeyance.”

It was one of those rare instances of bipartisan agreement in the Senate.

So far, though, the backlog of district court nominees on the Executive Calendar shows few signs of budging, save the impending confirmation of Xinis. On May 10, Cardin, joined by fellow Democrats Chris Coons of Delware and Casey, fired up another episode of Objection Theater. McConnell was there to shut them down, saying, “we are looking to see if we can set up another vote on a judicial nominee, but until that process is complete, I object.”

And in some cases, as he showed the next day with Toomey and Whitehouse, McConnell can even get the other side to object.