Changing How We Treat Judicial Nominees

To: Interested Parties
From: Marge Baker, People For the American Way
Re: Changing How We Treat Judicial Nominees
Date: January 5, 2011

As the Senate returns to Washington this week, it faces an opportunity for a fresh start on judicial nominations. Senate leaders would be wise to take it.

In the last session of Congress, the Senate’s treatment of President Obama’s judicial nominees was deeply disappointing. When the 111th Congress drew to a close, no fewer than 19 nominees were left waiting for votes. Many of those nominees had been pending for months, but none of them received an up or down vote on the Senate Floor.

This outcome was by no means an accident. It was the result of a concerted effort by Republican Senators to block the confirmation of President Obama’s nominees through persistent misuse of procedural rules.

The GOP didn’t have the ability to defeat a nominee on an up-or-down vote. Nor could it sustain a filibuster against any particular nominee. But by engaging in a campaign of unprecedented procedural abuse, the GOP managed to drastically limit the Senate’s ability to evaluate and vote on nominees.

When even a single senator objects to a “unanimous consent” agreement, the Senate is forced to undergo an arduous procedural maneuver to bring a nominee to a vote. First, the Senate Majority Leader is forced to file a cloture petition to end debate (a debate which, in most cases, isn’t even happening.) After cloture is filed it takes up to two days before Senate rules allow a vote on the petition. Then, Senate rules permit the Republicans to insist on up to 30 more hours of post-cloture “debate.” That means even when only a small minority of Senators actually oppose cloture, they have the ability to chew up days of the Senate’s time.

Even when nominees have broad support in the Senate, Republican leaders abused these rules to grind the Senate to a halt. For example, persistent Republican obstruction aimed at Barbara Keenan, President Obama’s nominee to sit on the 4th Circuit Court of Appeals forced Majority Leader Reid to file a cloture petition more than five months after she was nominated. Although throughout that time, Republicans blocked unanimous consent agreements, the final vote made clear that their opposition was purely political: she was confirmed 99-0.

Judge Keenan isn’t the only nominee to be handily confirmed after months of delay. Beverly Martin, nominated to a seat on the 11th Circuit Court of Appeals, was approved unanimously by the Senate Judiciary Committee, only to be held up for 132 days, at which point she was finally confirmed 97-0.

Joseph A. Greenaway, Jr., whom president Obama nominated to a seat on the 3rd Circuit Court of Appeals, also cleared committee unanimously. Greenaway was eventually confirmed 84-0, but not before waiting 131 days for a vote.

Of the 62 judges the Senate has confirmed over the last two years, the vast majority were confirmed months after they were first nominated for a vote on the floor, but only a few faced significant opposition when the time for voting finally arrived.

By building up a backlog of nominees for months, Republican Senators had successfully gamed the system by the end of the session. Since the Senate eventually ran out of time to go through the arduous procedure Republicans demanded, GOP leaders had an outsized ability to insist on which nominees could be confirmed and which would be sent back to the White House.

Luckily, Democrats don’t have to fall into the trap again. By calling votes early and often, Senate leaders have the ability to ensure that every nominee gets a vote. Senators have every right to vote against nominees, but history shows that in most cases nominees will receive overwhelming approval.

To make sure the process works, though, Senate Democrats can’t let any time go to waste. Senate Leahy has been exemplary in his willingness to ensure fair, thorough hearings in the judiciary committee while still making sure that the trains run on time. Other senators would do well to follow his example.

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