Senators Must Act Now to get their Home State out of Confirmation Limbo

As has been well-documented (see, e.g., here, here, and here), Senate Minority Leader Mitch McConnell (R-KY) has led an unprecedented effort to obstruct President Obama’s judicial nominees, with the result being that more than 100 vacancies have piled up on the federal bench, greatly impairing our Nation’s system of justice. Whereas uncontroversial nominees of previous Presidents could expect to move quickly from the Senate Judiciary Committee to a vote on the Senate floor, this has not been the case for President Obama’s nominees.  The 77 lower court nominees of George W. Bush who had been confirmed by this point in his presidency waited an average of 22 days to be confirmed after being favorably reported out of the Judiciary Committee.  In sharp contrast, President Obama’s 41 confirmed lower court judges (in absolute terms, itself a staggeringly low number) have waited more than four times that long — an average of 90 days.

Why is this happening?  In a September 23 statement, Senator Jeff Sessions (R-AL), Ranking Member of the Judiciary Committee, offered these excuses:
There is no question that the President, a former liberal law professor, intends to pack the courts with as many activists who will promote his vision of what America should be as he can. But Republicans will not stand quietly by and allow the rule of law in America to be historically altered by a federal judiciary that is agenda-oriented. If anything, we have been far too generous with our consent.
Senator Sessions’ over-heated explanation for the Senate-floor blockade of President Obama’s judicial nominees is wrong for many reasons.  First, it is conservative judges in rulings such as Citizens United v. Federal Election Commission, who have been the judicial activists in recent years.  If Senator Sessions really wants to be the guardian of the rule of law in this country, he should focus on why conservative judges are violating their purported belief in judicial restraint now that they constitute a clear majority on the federal bench.

But more importantly, Sessions’ explanation does not even begin to explain the holdup of Obama nominees who have Republican support.  The reality is that President Obama has worked very hard to find nominees with bipartisan appeal, only to confront obstruction on the Senate floor, nonetheless.  Take Jane Stranch, for example, a nominee from Tennessee to the U.S. Court of Appeals for the Sixth Circuit.  Stranch was nominated on August 6, 2009, had the support of her home state Senators, Republicans Lamar Alexander and Bob Corker, was voted favorably out of the Judiciary Committee on November 19, 2009, yet  by this summer still had not received a vote on the Senate floor, thanks to abuse of the Senate’s procedural rules by Senate Republicans.  In July, Senator Alexander, a member of the Senate’s Republican leadership, went to the Senate floor to ask for unanimous consent for a vote on Stranch’s nomination.  When Stranch finally received a vote on the Senate floor — on September 13, 2010, more than a year after she’d been nominated — she was easily confirmed by a bipartisan majority, 71-21.

Sadly, Stranch is not alone in having to wait for a floor vote despite Republican support for her confirmation. There are other well-qualified Obama nominees who have the support of Republican Senators and who have been reported favorably out of the Judiciary Committee, yet have not received an up-or-down vote on the Senate floor, such as:

  • Mary H. Murguia: Arizona Federal District Court Judge Mary Murguia was nominated to the Ninth Circuit on March 25, 2010 to a seat that has been declared a “judicial emergency” by the Administrative Office of the U.S. Courts.  She has a favorable rating from the ABA, was unanimously voted out of the Senate Judiciary Committee, and has the support of both of her Arizona Republican home state senators, John McCain and Jon Kyl.
  • Scott M. Matheson, Jr.:  Matheson, a law school professor in Utah who has previously served as the U.S. Attorney in that state, was nominated on March 3, 2010 to the Tenth Circuit. He has a “Unanimously Qualified” rating from the ABA and has the support of his home state Republican Senators, Orrin Hatch and Robert Bennett.  Senator Hatch has called Matheson a “capable, bright attorney whose experience has prepared him for judicial service.”   Matheson was unanimously reported out of Committee on May 13, 2010.

  • Denise J. Casper: Casper, the Deputy District Attorney for the Middlesex District Attorney’s Office in Cambridge, was nominated on April 28, 2010 to the District Court in Massachusetts.  Casper has an ABA rating of “Unanimously Well-Qualified,” and has the support of her home state Republican Senator, Scott Brown. She was unanimously reported out of Committee on August 5, 2010.
  • Catherine C. Eagles: Eagles is the first woman to hold the position of senior resident judge for the Superior Court of Guilford County, North Carolina. She was nominated on April 28, 2010 to a seat on the District Court in North Carolina. She has been rated “unanimously qualified” by the ABA and has the support of her home state Republican Senator, Richard Burr. Eagles was unanimously reported out of Committee on May 6, 2010.

These are just a few of the well-qualified men and women nominated by President Obama to the federal courts who have been reported out of the Judiciary Committee favorably and without controversy, but are still waiting for votes on the Senate  floor.  However, the window of time during which they can be confirmed during this Congress is quickly closing, and nothing less than the proper functioning of our Nation’s system of justice is at stake.  With the Senate planning to adjourn later this week and not return until after the November elections, it is imperative that these uncontroversial nominees receive up-or-down votes now.

The good news is that Republican Senators can help make this happen; Just as Senator Alexander did in July, Republicans can insist that these nominees receive a vote on the Senate floor.  Senator Kyl himself said in 2000, when he objected to his own party’s obstruction of President Clinton’s judicial nominees to the federal courts in Arizona, that “Politicians in Washington should stop playing political games – especially with other people’s lives.”

We couldn’t agree more.