According to media reports, Senate Republicans have agreed to confirm at least a total of 19 of the 38 judicial nominations pending on the Senate's calendar at the beginning of the lame duck session in exchange for a commitment that Senate Democrats refrain from holding votes on four others. These four nominations plus an additional 15 pending nominations not acted upon would be returned to the President when Congress adjourns.
"With these confirmations, the Senate will put a dent in the extraordinary number of vacancies on the federal bench, but it's nowhere near what we need," said Marge Baker of People For the American Way. "It's deeply disappointing that so many qualified nominees will be refused a vote. Of the nominees confirmed, the vast majority were approved by the Judiciary Committee without a single vote of opposition. Winning approval for these 19 nominees in the full Senate is a consolation prize at best, especially given the absence of any significant opposition to most of those confirmed. These nominees should have been confirmed months ago."
Of the nominees to be confirmed, some have been waiting for as long as a year for a vote. Among the nominees to be sent back to the White House without a vote are four of the eminently qualified—and mainstream—nominees who have been tagged as "controversial" by Republicans:
- Rhode Island nominee John McConnell, who has been opposed by the U.S. Chamber of Commerce for his willingness to represent victims of lead paint poisoning
- Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection
- U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union
- Ninth Circuit Appeals Court nominee Goodwin Liu, who, as the New York Times editorial page has pointed out, has been opposed mainly from fear that he's so qualified, he might end up on the Supreme Court
All four nominees would have garnered enough support to overcome a Republican filibuster.
"Not only will the Senate Democrats fail to confirm nominees who could easily have been approved, they will have allowed Senate Republicans to walk away with their hands clean," said Baker. "By never calling a vote on Butler, McConnell, Liu and Chen, Senator Reid will let Republicans block qualified nominees without even putting their opposition on the record. In the next Congress, the White House and Senate leadership have to make judicial nominations a far greater priority and prevent this kind of backlog from building up again. That means calling up nominees and taking cloture votes early and often.
"Republicans have spent decades putting jurists on the bench who bend the law to privilege corporate interests over the rights of individual Americans. By slow walking President Obama's nominees, GOP senators are trying to maintain the pro-corporate, anti-regulation bias they've worked so hard to embed in the federal judiciary. Senators shouldn't be fighting against nominees simply because they understand that the rights of individual Americans can't be tossed aside to appease corporate interests."