‘Nu­clear op­tion’ now hits Obama nom­i­nees Repub­li­cans slow con­fir­ma­tion process

The Washington Times Weekly - - Politics - BY TOM HOW­ELL JR.

The Repub­li­can-con­trolled Se­nate is con­firm­ing Pres­i­dent Obama’s ju­di­cial nom­i­nees this year at a slower pace than Democrats did af­ter tak­ing the Se­nate ma­jor­ity in 2007 un­der Pres­i­dent Ge­orge W. Bush, prompt­ing court watch­ers to warn that pol­i­tics is skew­ing the process.

Two years af­ter Democrats det­o­nated the nu­clear op­tion to change the fil­i­buster rules to speed judges through con­fir­ma­tion, they are fac­ing the other side of the coin: Repub­li­cans in charge who are flex­ing their pow­ers to slow down the process.

Sen­a­tors last week ap­proved LaShann M. DeArcy Hall to a judge­ship in New York, just the 10th ju­di­cial nominee ap­proved this year. By the same point in 2007, the Demo­crat-led cham­ber had con­firmed 36 of Mr. Bush’s ju­di­cial picks.

“Jus­tice de­layed is jus­tice de­nied,” said Carl To­bias, a law pro­fes­sor at the Univer­sity of Rich­mond who has tracked the con­fir­ma­tions and wor­ries that the slow pace is gum­ming up the courts. “It means that peo­ple and cor­po­ra­tions have to wait longer to have their cases re­solved, es­pe­cially on the civil side.”

Fif­teen other judges have been ap­proved by the Ju­di­ciary Com­mit­tee but still need votes in the full Se­nate for life­time ap­point­ments to the fed­eral courts. Five other nom­i­nees are wait­ing for con­fir­ma­tion to leg­isla­tive courts that op­er­ate in U.S. ter­ri­to­ries, mil­i­tary tri­bunals or tax courts.

Sen. Pa­trick J. Leahy of Ver­mont, the lead­ing Demo­crat on the Ju­di­ciary Com­mit­tee, ac­cused Repub­li­cans of slow-walk­ing the nom­i­nees in a bout of “pure pol­i­tics.”

“The great ad­van­tage of our fed­eral ju­di­cial sys­tem is it’s al­ways been kept out of pol­i­tics,” he said.

Al­low­ing it to seep in now, he said, would “cre­ate dan­gers for a gen­er­a­tion to come.”

Repub­li­cans say the pol­i­tick­ing started with Mr. Leahy and Sen. Harry Reid, the Democrats’ floor leader, who en­raged Repub­li­cans in Novem­ber 2013 when he rewrote Se­nate rules and de­ployed the “nu­clear op­tion,” al­low­ing to him push Mr. Obama’s nom­i­nees through the Se­nate on a ma­jor­ity ba­sis and by­pass­ing the tra­di­tional 60-vote thresh­old for over­com­ing fil­i­busters.

Mr. Reid ar­gued that he had no choice be­cause of Repub­li­can fil­i­busters to a few of Mr. Obama’s nom­i­na­tions.

His gam­bit ap­pears to have paid off, at least in terms of raw num­bers. The cir­cuit court level, where most big de­ci­sions are made, had 59 va­can­cies at the be­gin­ning of 2013. By the end of last year, when Democrats lost con­trol, Mr. Reid had whit­tled down that num­ber to seven va­can­cies.

This year, the big­gest prob­lem has been the dis­trict courts, where va­can­cies have gone from 33 in Jan­uary to 53 as of the be­gin­ning of Novem­ber.

Rus­sell Wheeler, a vis­it­ing fel­low at the Brook­ings Institution who stud­ies the courts, said the num­ber of va­can­cies is the im­por­tant fig­ure to track, par­tic­u­larly in courts that are strug­gling to keep up with their caseloads, and that much of the work at the dis­trict court level is not ide­o­log­i­cal.

“It’s just good busi­ness to ful­fill the ad­min­is­tra­tive duty of fill­ing va­can­cies,” he said. “Any re­spon­si­ble se­na­tor wants to get va­can­cies filled.”

Repub­li­cans say Democrats are making too much of the sit­u­a­tion and that their com­plaints ring hol­low given how they treated Mr. Bush’s picks — in­clud­ing us­ing the fil­i­buster, for the first time, to block cir­cuit court nom­i­nees.

Se­nate Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley, Iowa Repub­li­can, says the Se­nate has been more than fair to Mr. Obama com­pared with the Bush years. As of Oct. 5, the Se­nate had con­firmed 314 of Mr. Obama’s ju­di­cial nom­i­na­tions, com­pared with 291 of Pres­i­dent Ge­orge W. Bush’s picks at the same junc­ture in 2007, he said.

He also said Democrats tilted the year’s num­bers by ram­ming through 11 judges in the lame-duck ses­sion at the end of last year.

“Had we been able to con­sider those nom­i­nees this year un­der reg­u­lar or­der, the Se­nate would have con­firmed more judges this year,” he said in an Oc­to­ber floor speech.

In­clud­ing those 11 would bring this year’s to­tal to 21, which is still short of the 36 mark in 2007, though adding the 15 nom­i­nees in line for votes would put the Se­nate on par with the Demo­crat-led cham­ber of 2007.

“There’s 15 on the cal­en­dar, and I don’t have any con­trol over the cal­en­dar,” Mr. Grass­ley said in a brief hall­way in­ter­view at the Capi­tol. “McCon­nell’s got con­trol over the cal­en­dar.”

“We have reg­u­lar votes on ju­di­cial (and other) nom­i­nees. When the next one is sched­uled, it will be an­nounced,” said an email from Don­ald Ste­wart, a spokesman for Se­nate Ma­jor­ity Leader Mitch McCon­nell, Ken­tucky Repub­li­can.

Mr. To­bias said the Se­nate typ­i­cally clears the decks at the end of the year, and he is “cau­tiously op­ti­mistic” that could be the case in De­cem­ber, be­fore ac­tiv­ity grinds to a halt in a tense elec­tion year.

“I’m not hold­ing my breath,” he said. “And I don’t think any­one else is.”


Sen. Pa­trick J. Leahy of Ver­mont, the lead­ing Demo­crat on the Ju­di­ciary Com­mit­tee, said that al­low­ing pol­i­tics to seep into the fed­eral ju­di­cial sys­tem by slowwalk­ing the pres­i­dent’s court nom­i­nees would “cre­ate dan­gers for a gen­er­a­tion to come.”

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