Federal Courts and Nominations

The Real Nuclear Option

Last week, the Senate recessed without confirming a single federal judge, a sad reminder that right-wing obstructionism has become so widespread that the World’s Most Deliberative Body can no longer complete even the most basic tasks. And such obstructionism is not only a disaster for the nation, it is also an ironic reminder that many of the senators leading the fight against progress today felt quite differently just five years ago.

In 2005, progressive Senators filibustered just five of President George W. Bush’s nominees to the federal bench, and the right went nuclear — threatening to invoke the so-called “nuclear option” and end judicial filibusters once and for all. In the end, this game of brinksmanship led to a bipartisan “Gang of 14” senators agreeing to confirm three of those five nominees, and to adopt a new standard for filibustering judicial nominees. Under this standard, nominees would only be blocked in “extraordinary circumstances.”

Five years later, the idea of fighting a nuclear war over just five judicial filibusters seems quaint. Indeed, once President Obama took office, his opponents turned the Gang’s deal on its head, obstructing all of Obama’s judicial nominees except under extraordinary circumstances.

This is the new nuclear option, and, while it is being deployed with none of the fanfare that marked the Senate’s previous flirtation with the bomb, it is far more dangerous than its better known predecessor. Yesterday’s nuclear weapons would have merely blown up a Senate rule, but today’s bomb threatens the future of our federal judiciary.

Although President Bush complained loudly about obstruction of his judicial nominees, the reality is that he was quite successful in confirming judges to the federal bench. Nearly 87 percent of Bush’s nominees were confirmed by the time he left office — a higher batting average than either of his two predecessors. By this point in his presidency, 77 of Bush’s lower court nominees wore black robes.

The numbers for President Obama are far, far worse. Only 41 of his lower court nominees have been confirmed to date, while more than 100 vacancies have piled up on the federal bench. Part of the explanation is President Obama’s slow pace of nominations. But an even bigger reason for this low total has gotten far too little attention: the blockage of Obama nominees once they get to the Senate floor.

The numbers here are really extraordinary. The 77 Bush nominees confirmed by mid-September 2002 waited an average of 22 days to be confirmed after being favorably reported out of the Senate Judiciary Committee. President Obama’s confirmed judges to date have waited more than four times that long, an average of 90 days — and that’s not counting the more than half of Obama’s nominees who are still waiting for a vote.

Take for example Kimberly Mueller, a sitting Magistrate Judge who would be the first female judge confirmed to the federal district court for the Eastern District of California. Mueller’s nomination is utterly uncontroversial: On May 6, 2010, she was reported out of the Senate Judiciary Committee on a voice vote with no recorded opposition. And Mueller has been nominated to the busiest federal court in the country. Each judge on the Eastern District of California manages a case load of more than 1,100 cases, more than twice the recommended workload. With good reason, the federal judiciary has declared this vacancy a “judicial emergency.” Yet Mueller’s nomination has been languishing on the Senate floor for more than four months, with no vote in sight.

How can this happen? The short answer is that Senate rules are easy to abuse and conservative senators are doing something that is completely unprecedented: using uncontroversial judicial nominees as pawns in their obstructionist game. While it is well known by now that 60 votes are required to get nearly anything done under the Senate’s current rules about filibusters, it is also true that it takes 100 votes (“unanimous consent” in Senate lingo) to get things done quickly. Using a combination of these two rules, conservative senators have forced Senate Majority Leader Harry Reid to allocate scarce time on the Senate floor for just about every Obama confirmation.

This strategy can be startlingly effective. While a supermajority of senators can break a filibuster, once a filibuster is broken the filibustering senators can force up to 30 hours of debate during which no new business can be considered. Presently, 48 of President Obama’s judicial nominees await confirmation. At 30 hours per nominee, the Senate would have to spend nearly two months to act on each of these nominations, and that’s assuming the Senate works around the clock, takes no weekends off, and gets no other business done for this entire time period.

The numbers get even worse when you add in the hundreds of agency officials and ambassadors that the Senate needs to confirm and the various bills and appropriations that must pass each year just to keep the country running. Because it is literally impossible to finish more than a fraction of these tasks if the Senate spends 30 hours on each nomination, the minority’s mere threat of a filibuster is enough to delay a confirmation indefinitely.

Conservatives used this threat to prevent the confirmation of Obama nominee Barbara Milano Keenan to the Fourth Circuit for four months. She was then confirmed 99-0. Similarly, Second Circuit nominee Denny Chin was also blocked by a filibuster threat for months, only to be confirmed 98-0. Judge Jane Stranch enjoys the support of both of her state’s Republican senators, but she waited over 400 days for confirmation only to receive a lopsided 71-21 vote.

It is remarkably easy, in other words, to abuse the Senate rules and prevent timely judicial confirmations — or even keep more than a handful of nominees from being confirmed in the first place. And while conservatives may claim this is nothing new, the confirmation totals and Senate floor wait times belie these claims.

There are dozens of well-qualified judicial nominees like Kimberly Mueller who should be voted on before this Senate ends in January and, with the upcoming elections, very few days on the legislative calendar for these confirmation votes to take place. Conservative senators can vote against these confirmations if they choose to do so. But holding rank-and-file judicial nominees hostage to advance a larger political agenda is the real “nuclear option” and, if this continues, it is the judiciary and Americans seeking justice in this country who will bear the fallout.

Doug Kendall is President of Constitutional Accountability Center. Ian Millhiser is a policy analyst at The Center for American Progress.

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