For the entirety of President Obama's first term, the GOP has grossly abused Senate rules in order to stymie his every initiative, including addressing our nation's courtroom vacancy crisis. Under Senate rules, you need unanimous consent to schedule a confirmation vote; yet even for consensus nominees, Republicans have withheld that consent for month after month after month. As a result, while George W. Bush's confirmed judicial nominees on average received floor votes 34 days after committee approval during his first term, the average wait time has skyrocketed to 104 days for President Obama's nominees.
Last week, the American people responded to these four years of GOP obstructionism by resoundingly reelecting President Obama and enlarging the Democratic majority in the Senate. The message could not have been any clearer: Republicans, stop obstructing and start acting like a responsible partner in government. Now that Congress has returned for the lame duck session, there is simply no excuse for Republicans to keep blocking the 19 highly qualified judicial nominees who should have been confirmed months ago.
Yet some Republicans appear dead set on continuing to obstruct, no matter the cost to their party or the country. This week, Roll Call reported that Senate Republicans expect few if any nominees to be confirmed this year:
Senate action on "judicial nominees in a lame-duck session of a presidential election year are very rare," a senior GOP Senate aide said. The re-election of President George W. Bush in 2004 "is the only time in recent memory that it happened, and even then, only a few district court nominees were processed," the aide added.
According to Republicans, no circuit court nominees have been processed in a lame duck of a presidential election year since the administration of President Jimmy Carter, and then it was only one.
First off, the distinction the Republicans are trying to draw between a lame duck session following a presidential election vs. a lame duck session following a midterm election is a difference totally without any meeting. Whether it's after a presidential reelection or a midterm election, there is no change in the president who is making the nominations. So what possible reason could they have to say lame duck sessions only count if they come after a presidential election? For anyone who is even remotely familiar with the strategies Republicans routinely use to mislead the American people, that is a clear signal that they desperately don't want you to look at what happened in other lame duck sessions.
And – surprise, surprise – it turns out that the Senate has vigorously confirmed nominees during previous lame ducks sessions. Immediately after the 2002 midterm elections, the Democratic-controlled Senate confirmed 18 of President Bush's judicial nominees in one day, both circuit and district court nominees, all by voice vote. They confirmed two more circuit court nominees within the next few days. And this was even though the Senate control was about to change hands as a result of the elections. Even though the Democrats could have used their majority to obstruct President Bush's nominees, they didn't. This is what responsible governing looks like.
During the most recent lame duck, two years ago after the 2010 midterms, the Senate confirmed 19 judges in less than a week, including five circuit court nominees. And 19 just happens to be the number of long-pending nominees we have today, four of them for circuit courts. It can be done.
That said, the presidential election years that the GOP focuses on deserve a closer look, because they do not support the Republicans' argument. Unlike 2004 and 2008, 2012 saw persistent, universal obstruction of every judicial nominee. That is why we now have so many long-pending nominees. If you look at the number of nominees who were confirmed after June 1 in these three election years, the difference is clear: 30 in 2004, 22 in 2008, and a mere 12 so far in 2012.
A look at the circuit courts in particular is instructive: Five of President Bush's nominees who were approved by the Judiciary Committee in 2004 were confirmed later in the year. In stark contrast, because of Republican obstruction, even this late in the year, the Senate has confirmed only two circuit court nominees who had been approved by committee this year, and both required a cloture petition to end Republican filibusters. (It wasn't until late May of this year that the Senate finally confirmed a nominee who had not been languishing on the floor since 2011.)
Confirming all 19 of the long-pending nominees during the current lame duck is not difficult. Unlike with the budget negotiations, all the hard work has been done already: The Judiciary Committee approved these nominations many months ago. Almost every one of them was approved by the committee with overwhelming bipartisan support. Every nominee has had the support of their home state senators, whether Democratic or Republican.
There are no questions left to be asked. All the Senate has to do is vote. All Republicans have to do is to let the Senate vote.