Federal Courts and Nominations

Senatorial Discourtesy?

Rhode Island’s United States Senators, Jack Reed (D) and Sheldon Whitehouse (D), are pretty steamed right now.  Not only have Senate Republicans blocked a floor vote on the nomination of John J. McConnell, Jr. to the United States District Court for the District of Rhode Island — a nomination that’s been pending for more than a year — but last week, Senator John Cornyn (R-TX), a member of the Judiciary Committee, announced that he might support a filibuster of McConnell.

A filibuster of a District Court nominee?  A nominee who has the very strong support of both of his home-state Senators, not to mention bipartisan support in his home state, as well as the support of Senator Lindsey Graham (S.C.), a Republican colleague of Senator Cornyn’s on the Judiciary Committee?  No wonder the Rhode Island Senators are so upset.

Apart from the fact that Senator Cornyn, during the George W. Bush Administration, expressly stated that “an up or down vote [on a nominee] is a matter of fundamental fairness,” filibusters of District Court nominees are almost unheard of.  When it comes to the confirmation process for district court  nominees, it’s a longstanding tradition in the Senate that the views of a nominee’s home-state Senators are given great deference by the other 98 Senators.

Unlike the Circuit Courts of Appeal, which have jurisdiction over several states (except, of course, for the D.C. and Federal Circuits), District Courts have very narrow jurisdictions confined to a single state.  In highly populated states, a District Court’s jurisdiction is even narrower, extending only to a single geographic region within the state.  The rulings of District Court judges have no binding effect outside their Districts, and can be overturned on appeal.  This is not to say that District Court judges are unimportant (to the contrary), or that careful scrutiny of nominees to the District Courts should not take place; of course it should.  Still, it is highly unusual for partisan fights to erupt over District Court nominees, and even more unusual for such fights to occur when a nominee has the support of both home-state Senators; and it’s more unusual still for a District Court nominee to be subjected to a cloture vote to overcome a filibuster.

And so Senator Cornyn’s March 31 announcement that he might support a filibuster of Jack McConnell was pretty surprising.  Perhaps Senator Cornyn has forgotten the very different treatment that his Democratic colleagues accorded two of President George W. Bush’s most controversial — if not the most controversial — trial court nominees:  J. Leon Holmes, nominated to the Eastern District of Arkansas, and Victor J. Wolski, nominated to the U.S. Court of Federal Claims (a trial level court located in Washington, D.C., that hears monetary claims against the federal government, including claims arising under the Fifth Amendment’s Takings Clause).

Holmes was a staunch opponent of women’s reproductive freedom, and had a record replete with extreme and inflammatory statements about women’s rights.  Wolski was a self-professed ideologue, including on the important environmental issues that make up much of the docket of the court to which he had been nominated.  Despite the very strong opposition to their confirmations, Holmes and Wolksi were both confirmed, by votes of 51-46 and 54-43, respectively.  In each instance, there were a sufficient number of Democratic Senators who opposed confirmation to have mounted a successful filibuster had they chosen to do so (it only takes 41).  But they didn’t.  In fact, no cloture vote was held on either nominee.

And so Republicans’ obstruction of a floor vote on the McConnell nomination raises some very important questions, ones that Senator Whitehouse has repeatedly asked his colleagues:

Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush?  Why have we departed from the longstanding tradition of respect for the views of home State Senators who know the nominees best and who best understand their home districts?  Is disregard for the views of home State Senators the standard Republicans want to live by during the next Republican Presidency?  Is that the new precedent we wish to set here in the Senate?

Is it, Senator Cornyn?

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone