To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: January 13, 2015
Re: White House Outreach to Republicans on Judges Should Be Met with Cooperation, Not Stonewalling
Since Republicans now control the Senate, many are asking how that may affect the confirmation of federal judges, one of the Senate’s most important tasks. The short answer: It shouldn’t.
The Senate GOP engaged in unprecedented obstruction as the minority party, and the increased damage they could do to America’s judiciary now that they control the Senate is significant. They have hardly spent the past six years working in good faith with the White House to strengthen our nation’s courts.
But when Democrats controlled the Senate during the last two years of George W. Bush’s term, they did not stop processing nominations. There were 56 vacancies at the beginning of 2007, and throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer. The Senate confirmed 68 circuit and district court judges during those two years (about a fifth of Bush’s eight-year total), getting the number of vacancies down to as low as 34 in the early fall of 2008. Even when an unusually high number of vacancies after Election Day drove that number up to 55 by Inauguration Day, that was still just about what it had been two years earlier. Americans have the right to expect similar success in filling vacancies in 2015-2016. The first and necessary step is for the president to choose nominees, but both parties have a role here.
Despite having the sole constitutional authority to nominate judges, President Obama has bent over backwards to cooperate with senators of both parties before exercising that authority. Any conversation about President Obama’s choice of judicial nominees in 2015-2016 has to start with an understanding of that accommodation, and of its reasonable limits.
As of January 12, there are 32 current judicial vacancies without nominees, most of them vacant for over a year, and some going back as far as 2010-2012. Tellingly, all but three are from states with Republican senators (and the oldest such vacancy from a two-Democratic state only dates back to August 2014).
Two Fifth Circuit vacancies have remained open for far too long without nominees because the White House has been consulting extensively with Sens. Cornyn and Cruz, the two Republican senators from Texas. Despite press reports long ago that he had two people in mind – moderate district judges who had been recommended for those positions by Republicans and, in one case, nominated by one – he did not nominate them. Cornyn and Cruz have apparently not specifically approved them, and the White House has chosen to wait and to continue consultations. Obama has shown great willingness to cooperate even though both vacancies were long ago formally designated as judicial emergencies by the Administrative Office of U.S. Courts. One of these vacancies has been open for more than two years, while the other was announced more than a year ago. After such a long period of extensive consultation, and given the significant need for these vacancies to be filled, the president would have been fully justified in making nominations many months ago. That he has not already done so is just one example of how accommodating of Republicans he has been.
That accommodation extends to the architect of Republican obstruction, Mitch McConnell. In June of 2013, Judge Boyce Martin announced that he would retire that August, opening up a Kentucky slot on the Sixth Circuit. Just two months earlier, citing the increasing caseload, the Judicial Conference of the United States asked Congress to create an additional judgeship for the Sixth Circuit. Last winter, President Obama began vetting a potential nominee. While McConnell and fellow Kentucky senator Rand Paul have not commented on her publicly, Obama has not nominated her, or anyone else, in the year and a half since the vacancy was announced. Again, this is not a president who ignores senators of the other party.
No circuit court vacancy is older than the Wisconsin slot on the Seventh Circuit, which dates back to January of 2010. President Obama’s original nominee was supported by the two Democrats who were then the state’s senators, Herb Kohl and Russ Feingold. She was among the dozens of nominees left unconfirmed at the end of 2010 who had to be renominated at the beginning of the 112th Congress, by which time Democratic Senator Feingold had been replaced by Republican Senator Ron Johnson. Johnson then made clear in 2011 that he did not support the nomination, and it was not processed by the Judiciary Committee. Another election cycle came and went, and Kohl was replaced by Democrat Tammy Baldwin. Johnson and Baldwin put together a judicial nominations commission to vet possible nominees, a common practice at the district court level. But they announced that they would also use it to recommend circuit court nominees, which is not at all common since senators generally have a much smaller role to play in the selection of circuit court nominees from their state than they do with district court nominees. Not only that, the senators announced that their commission would not get around to the circuit court nomination until it had first finished with two separate processes for district court vacancies. That has caused significant delay; the commission only began looking at potential nominees this fall. This for a judicial emergency vacant since 2010. While the president would have been fully justified in nominating someone and fighting for their confirmation over Sen. Johnson’s disapproval, he has instead chosen to work with both Wisconsin senators.
Similarly, although Eleventh Circuit Judge Joel Dubina of Alabama announced his intent to take senior status back in February of 2013, and two Alabama district court seats have been vacant since August of that year, the lack of a nominations for any of these judgeships after all this time suggests that the White House is engaged in consultations with Republican Sens. Jeff Sessions and Richard Shelby. (Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.)
In all of these cases, there are many highly qualified potential nominees whom progressive advocates and mainstream lawyers would be happy to have on the bench. Some may say the president has put too high a priority on consulting with Republican senators, and that he should make nominations for these seats and then fight for their confirmation over GOP objections. Whatever the merits of this position, that isn’t what has happened: President Obama’s tenure in office has been characterized by remarkable willingness to consult with the Republicans who engage in unprecedented obstruction to keep him from filling vacancies on the federal bench.
Senators of both parties jealously protect their prerogative to be consulted by the White House on judicial nominations in their states, a prerogative that President Obama has respected. But when weeks of consultations drag on into months or even a year or more, it may indicate that something has gone wrong. In the case of the Third Circuit, the White House clearly felt positive about its ongoing conversations with Pennsylvania’s Democratic Sen. Casey and Republican Sen. Toomey, and they led to a quality nominee, Luis Restrepo.
But no senator should see President Obama’s outreach as an opportunity to coerce him into naming an unacceptable far-right nominee. Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most. At some point, such senators have two choices. They can agree with the White House on someone everyone can support. Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.
Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.