Federal Courts and Nominations

Senator Mike Lee is Feeling the Heat – But He Shouldn’t be the Only One in the Frying Pan

Senator Mike Lee (R-UT) is making good on his promise to attempt to block President Obama’s judicial nominees in retaliation for the President’s recess appointments in January of Richard Cordray to the Consumer Financial Protection Bureau and three individuals to the NLRB, appointments that Lee believes were unconstitutional.  On February 9, Senator Lee voted on the Senate floor against the confirmation of Cathy Ann Bencivengo to the U.S. District Court in California, although Bencivengo had been reported out of the Senate Judiciary Committee, of which Lee is a member, back in October on a unanimous, bipartisan vote.  Lee admitted his “no” vote on the floor had nothing to do with Bencivengo’s qualifications, but was part of his continuing protest against the recess appointments.

CAC President Doug Kendall has explained here why Lee’s tantrum runs contrary to his constitutional obligation to give “advice and consent” on the President’s nominees.  Lee’s even getting heat from the press in his home state (see, e.g., here ), and it’s been reported that some of his Republican colleagues in the Senate are disturbed by what he’s doing, because “it allows Obama to paint them as obstructionists.”  But in fact, they are.  While Senator Lee at least has been candid about what he is doing, conservatives in the Senate have been abusing Senate rules since the beginning of the Obama Administration to keep the President from filling vacancies on the federal bench.  The result is a vacancy crisis on the federal courts that is delaying and denying justice to Americans across the country.

The handling of Judge Bencivengo’s nomination is just the latest example of the obstruction.  It took four months for Judge Bencivengo to receive a vote on the Senate floor, even though her nomination was not the least bit controversial and even though the seat to which she was nominated had been declared a judicial emergency by the federal courts.  During prior Administrations, uncontroversial nominees like Bencivengo would have moved quickly from the Judiciary Committee to a vote on the Senate floor.  Not so since Barack Obama became President.  The consistent delay of well-qualified, uncontroversial judicial nominees is unprecedented.  Right now, for example, there are 18 judicial nominees waiting for a yes or no vote on the Senate floor, 15 of whom were reported out of the Judiciary Committee without opposition, most of them months ago.  Senator Lee may be voting “no” now on uncontroversial nominees, but Minority Leader Mitch McConnell (R-KY) and his Senate allies have been doing their best to ensure that nominees don’t even get that yes or no vote, using such tactics as refusing to give unanimous consent to holding a vote and forcing cloture on uncontroversial nominees.

What Senator Lee is doing is reprehensible, but he’s hardly the only obstructionist in the Senate, and he’s not the only one who should be feeling the heat.

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