Federal Courts and Nominations

One Last Shot–Democrats aim for votes on controversial judicial nominees

Before the Democratic majority shrinks at the end of the year, senators are preparing for a possible showdown over President Barack Obama’s most controversial judicial nominees.

In an interview, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said he supports Democrats using a week or more of the “lame duck” session in order to confirm nominees such as Goodwin Liu for the U.S. Court of Appeals for the 9th Circuit. Forcing a vote on a single nominee can take days under Senate rules that guarantee a certain amount of debate time. (The lame-duck session began last week and will continue into December. No end date has been set.)

“The better thing would be if you have people who responsibly use the filibuster,” said Leahy, who supported filibusters against some of President George W. Bush’s judicial nominees. “But,” he added, “if this is the only thing you can do, then you have to do it.”

Sen. Sheldon Whitehouse (D-R.I.) said that Majority Leader Harry Reid (D-Nev.) was making preparations last week to try to force votes on four nominees targeted by Republicans. The four are Liu, a professor at the University of California, Berkeley School of Law; Louis Butler, a former Wisconsin Supreme Court justice, for district court in the Western District of Wisconsin; Edward Chen, a federal magistrate judge, for district court in the Northern District of California; and Motley Rice partner John McConnell Jr. for district court in the District of Rhode Island. Besides the four nominees who’ve received the most attention, 19 nominees for district and circuit court vacancies are awaiting votes in the full Senate. The Senate hasn’t confirmed a judicial nominee since Sept. 13.

Although senators have many other priorities during the lame-duck session, Whitehouse said he thinks there is time to consider the stalled nominees. A spokeswoman for Reid declined to comment on possible timing, but votes on whether to confirm the nominees could come as soon as the week of Nov. 29, depending on whether Democrats have the votes and other factors.

Conservatives are hoping to quash the plans by arguing that voters rebuked Democrats in the midterm elections. Curt Levey, executive director of the Committee for Justice, said he thinks some Republican senators who typically would be reluctant to filibuster a judicial nominee might be more willing to do so during the lame-duck session. “It always seems to me that it’s easier to get the Republican Party to stay together when it’s an issue of ‘Are we being treated fairly?’ rather than ‘Do you think this judge is horrible?’ ” Levey said.

The four nominees in question have faced criticism for a variety of reasons. McConnell has been a major campaign contributor to Democrats and he represented plaintiffs in mass tort litigation involving lead paint, drawing the ire of the U.S. Chamber of Commerce. Liu, a former chairman of the liberal American Constitution Society, testified in 2006 against the confirmation of Justice Samuel Alito Jr.


The focus on judicial nominees is a change from the strategy that Senate Democrats have pursued during most of the Obama administration. They’ve tried to move along methodically on noncontroversial nominees while delaying action on those who would spark drawn-out debate. Only one nominee, Judge David Hamilton for the 7th Circuit, drew a serious filibuster threat, and 10 Republicans joined Democrats to avoid that.

So far, the Senate has delayed but not outright blocked any of Obama’s picks for the federal bench — something that, if it continues, would best the records of his two recent predecessors, Bush and President Bill Clinton, both of whom saw judicial nominees defeated. But the picture for Obama’s nominees could get worse in January, when Democrats will likely have a more difficult time breaking Republican filibusters. Their majority, now at 59 seats, shrinks to 53 when the next Congress convenes. And even in the interim, they will lose a seat when Sen.-elect Mark Kirk (R-Ill.) is sworn in on Nov. 29; he won a full term and a special election for the remainder of Obama’s old Senate term.

On the Senate Judiciary Committee, which votes on nominees before they reach the full chamber, the margin between the two parties will also narrow. Sen.-elect Mike Lee (R-Utah), who is a Howrey partner and former Alito clerk, has expressed interest in joining the committee.

Doug Kendall, president of the liberal Constitutional Accountability Center, said there’s a bright side for the president’s supporters. Democrats are unlikely to attempt to pass much major legislation, he said, freeing up scarce time to prioritize nominations. “Senate Democrats will have more floor time to schedule votes,” Kendall said. “One of the dynamics will be that Republicans will be forced to decide whether they’re serious about trying to block judicial confirmations.”

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