Arizona's federal district courts are currently operating with six of their thirteen judgeships not only vacant but also designated as judicial emergencies, so you'd think that the state's senators would want to expedite the process of confirming five nominees to fill those vacancies. But you'd be wrong.
It turns out that far from ensuring that Arizona's half-empty district courts are fully staffed, either Sen. John McCain or Sen. Jeff Flake or both are keeping all five of President Obama's nominees for Arizona's courts from even getting preliminary hearings before the Senate Judiciary Committee. And because of the secrecy of the so-called "blue-slip" process that is delaying these nominations, we don't know which senator is holding up the nominees or even why they are doing so.
Here's what we do know: The Judiciary Committee today announced its agenda for this week's hearing on federal judicial nominees, and conspicuously absent for the second consecutive week were the five Arizona nominees whom the president nominated two months ago. Yet nominees who were named after the Arizonans have been scheduled for hearings.
The committee usually takes up judicial nominations in the order they were made, so when nominees are skipped, it's generally because their home-state senators are using the "blue slip" process to gum up the works. Chairman Patrick Leahy's practice is to not allow a hearing on any judicial nomination until both home-state senators submit a "blue slip" signaling their approval for the process to start….a system that Republican senators have exploited to slow slow down and even torpedoed President Obama's judicial nominees.
So do Senators McCain and Flake have problems with President Obama's five nominees to fill district court vacancies in Arizona? Ordinarily, it would seem unlikely, since these nominations were the result of months of consultations between Sen. McCain and the White House.
President Obama nominated the first of the five Arizona nominees, Rosemary Márquez, way back in 2011, but then-Sen. Jon Kyl blocked her by refusing to submit his "blue slip." When Kyl was replaced by Jeff Flake, Sen. McCain took the lead on judicial nominations in the state, and he, too, blocked Márquez until he could make a deal with the White House to get additional nominees he supported onto the court. In fact, here is what Sen. McCain said in September when, at his suggestion, President Obama nominated Diane Humetewa, Steven Logan, Douglas Rayes, and John Tuchi to join Márquez:
The nominees to serve on the United States District Court for the District of Arizona have demonstrated devotion to public service and commitment to justice, and I believe they are uniquely qualified to address the legal issues facing our state. The recent judicial vacancies in Arizona have created an unsustainable situation for the Court and are a serious impediment to the administration of justice for the people of Arizona. The need to fill these vacancies is critical as the District of Arizona ranks as one of the top ten busiest district courts in the country. I urge the Senate Judiciary Committee to consider these five very capable nominees as soon as possible and allow the full Senate to swiftly confirm them as the district court judges for the District of Arizona. [emphasis added]
What Sen. McCain said two months ago was right: Arizonans need these judgeships filled yesterday. Arizona has six vacant district court seats out of a total of 12 authorized judgeships (plus a 13th temporary judgeship). All six have been designated as judicial emergencies by the Administrative Office of U.S. Courts, meaning the caseload is so pressing that the work just isn't getting done in a timely manner: Individuals and businesses are in effect being denied their day in court. In fact, the situation is so bad that the Judicial Conference of the United States has asked Congress to create ten additional judgeships in the state: So even if the six current vacancies were filled today, Arizona still needs another ten judges to ensure that justice is done throughout the state. In the interests of Arizonans, the Senate Judiciary Committee should take up and consider these nominations as quickly as possible.
And yet it isn't happening. For the second week in a row, the Judiciary Committee will be hearing from nominees who were nominated after the five Arizonans – including Diane Humetewa, who would become the nation's only serving Native American federal judge.
It looks like McCain and Flake have withheld their blue slips. Have they found a problem with the nominees who McCain recommended and previously supported and who Sen. Flake has said nothing against? Or are they doing the bidding of someone else, perhaps Judiciary Committee senior Republican Chuck Grassley or Senate Minority Leader Mitch McConnell, both of whom have used every procedure in the book to slow down just about any judicial nomination coming out of the Obama White House?
With fewer times available for hearings this year, if the Arizona nominees don't get their hearings this week, they risk being put off until next year.
And for what? We don't know, because Senators McCain and Flake haven't said a thing.