Who’s to Blame for Nomination Bottleneck?

President Obama entered office with a nearly unprecedented opportunity to remake the federal courts, but he has yet to take advantage of it.  The President has only made 38 judicial nominations, and the Senate has only confirmed 14.  Who is to blame for the slow pace?  It depends on who you ask — and when you ask them. (My own take can be found here and here.)

Writing on December 31, University of Richmond law professor Carl Tobias placed much of the blame on Republican obstruction, while excusing the Administration’s slow trickle of nominations and Senate majority’s focus on other priorities.

Recent criticisms of President Obama’s judicial nomination practices lack merit. The Judiciary panel majority expedited processing, but the minority’s routine dependence on holds has contributed to delay. The real obstacle has been the almost total dearth of floor action. Republicans must quit stalling floor consideration. If the GOP persists, Democrats should invoke cloture and similar measures that will foster prompt confirmations.

Tobias criticized Senate Republicans for holding over votes on committee or seeking more time for debate, yet ignored Senate Democrats’ use of the same tactics during Bush’s presidency. Indeed, Senate Democrats held over votes at a higher rate at the start of Bush’s first time than Republicans have thus far for Obama.  This doesn’t excuse the practice, but it undermines the claim Republicans are engaged in unprecedented obstruction.

Writing on Feb. 2 in Roll Call, Tobias was more even-handed, noting there are other explanations for the slow pace.

That the Senate has approved 14 judges and Obama has nominated 38 individuals are not criticisms of the president or the Senate. Appointing a new Supreme Court justice before the October 2009 Supreme Court term began was critical. Justice Sonia Sotomayor’s confirmation process consumed three months during which little additional judicial selection activity transpired. The previous administration also left numerous complex problems, such as the deep, ongoing recession; the Guantánamo Bay, Cuba, prison; and the Iraq and Afghanistan conflicts, which required much executive and Senate energy and time.

This is a point I’ve emphasized: The Administration’s focus on other matters, including Supreme Court nominations, combined with the concentration of judicial vetting in the White House Counsel’s office has led to fewer nominations and less pressure to confirm those in the queue.

In his Roll Call piece Tobias also noted that there is a long history of escalating tit-for-tat in judicial nominations.

Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as nonstop paybacks have plagued judicial appointments, mainly because of divided government. Although Democrats currently control the White House and the Senate, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

While he’s correct to note the “nonstop paybacks” that have “plagued” the judicial confirmation process, but I think the emphasis on the Bork nomination as a turning point is a mistake.  The Bork fight angered many Republicans, to be sure, but Bork was nominated to the Supreme Court, where the rules may be different.  Modern fights over appellate nominations actually began a few years earlier, when Democrats decided to target some of President Reagan’s lower court nominees, as the Washington Post reported on November 12, 1985.   As the Post reported:

Since they are loath to oppose a nominee solely on ideological grounds, the Democrats have trained their fire on other issues — credibility, temperament, discrepancies in testimony — to wound the most conservative nominees for judgeships and Justice Department vacancies.

When Democrats retook the Senate in 1986, they were able to begin defeating nominees.  Jeff Sessions, who now sits on the Senate Judiciary Committee, was the first they brought to defeat.  The late Bernard Siegan was another.  Other nominations were substantially delayed, as Senate Democrats sought to run out the clock on the Reagan Administration in case voters elected a Democratic successor.  Senate Democrats eased up a bit at the beginning of the Bush Administration, only to up the obstruction in the latter half of his term.  Senate Republicans, of course, returned the favor to President Clinton, and then some. And so on.

The simple fact is that since Senate Democrats began challenging lower court nominees in the 1980s, both parties have engaged in escalating obstruction of lower court judicial nominations, and both parties will need to make concessions if this destructive practice is going to end.  While Tobias repeats the White House talking point that President Obama has named 12 “consensus” and ideologically “diverse” appellate nominees (?!), the reality is President Obama has little to reduce nomination tensions.  President Bush, by contrast, nominated two individuals favored by his predecessor at the start of his term — Roger Gregory and Barrington Parker.  Perhaps if President Obama would follow Bush’s lead, it could lead to a deal to end political fights over appellate nominations.

UPDATE: It’s also worth noting Senator Jeff Sessions’ Nov. 27 op-ed explaining his decision to vote against cloture on the nomination of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, in which he expressed his willingness to eliminate filibusters of judicial nominees altogether if Senate Democrats would go along.

This year, a number of my colleagues and I have voted against just three judicial nominees, including Justice Sonia Sotomayor. Only in the case of Judge Hamilton have we raised a procedural objection to Majority Leader Harry Reid’s desire to proceed to a vote.

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate’s official rules. So far, no takers.