Federal Courts and Nominations

Tenacity for Bush = Audacity for Obama?

In a recent blog post, the Republican National Lawyers Association (RNLA) bemoaned the “audacity” of President Obama’s decision to re-nominate Caitlin Halligan to fill one of the three  (soon to be four) empty seats on the federal Court of Appeals for the D.C. Circuit. The basis of the RNLA’s complaint is the Republican filibuster that prevented Halligan from gaining Senate approval when her nomination came up in the 112th Congress. Having been once denied Senate approval by a filibuster seems to render a judicial nominee unfit for any further consideration in the eyes of the RNLA.  Or at least that seems to be the RNLA’s position today.

One wonders where the RNLA was during the Bush Administration.  In his eight years in office, President Bush re-nominated seven judicial nominees who were initially denied Senate approval by a filibuster. Five of these controversial nominees were later confirmed to the federal bench. While the RNLA may now view a single filibuster as a disqualifying event, President Bush clearly did not share their view.  Priscilla Owen, who was initially nominated to the 5th Circuit in 2001, was successfully filibustered no less than four times in 2003, before being re-nominated, re-filibustered, and finally confirmed (over significant opposition) in 2005. Similarly, William Pryor was nominated to the 11th Circuit in 2003 and successfully filibustered twice in the same year before being re-nominated and overcoming a final third filibuster to be confirmed in 2005. Janice Brown (DC Circuit), David McKeague (6th Circuit), and Richard A. Griffin (6th Circuit) are all further examples of Bush Circuit Court nominees who were re-nominated (and ultimately confirmed) after first being successfully filibustered. One filibustered nominee who deserves special attention is Charles W. Pickering who was nominated to the 5th Circuit by President Bush in 2001. After his initial nomination, Pickering’s nomination was sent back and forth between the Senate and the President two times before being successfully filibustered in 2003. Undeterred by this filibuster, Bush went so far as to recess appoint Pickering to the 5th Circuit where he sat for a year without Senate confirmation before his recess appointment expired.

Over the past four years, conservatives in the Senate have gone to extraordinary lengths to obstruct President Obama’s nominees, using the filibuster and filibuster threats to delay and obstruct the confirmation of even the least controversial of President Obama’s nominees, all to the detriment of the American system of justice.  The only audacious thing at work here is the use of filibusters to block highly qualified nominees such as Caitlin Halligan.  Under such circumstances, Halligan’s renomination is a welcome example of tenacity by the President. 

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