Senator Rubio of Florida is now one of the strongest contenders in the GOP for president. He is qualified and likeable and thus far has a clean record on ethics. One or more of Rubio’s Senate colleagues also might have a shot at the nomination. There are other good candidates as well. And Republicans, if they can get their act together, have a very good chance of electing a president in 2016.
One of the most important things a new president will do is appoint judges, the job that our current president has been trying to do for the past five years. The president will need the advice and consent of the Senate to make these appointments, but courts need judges, and presidents and senators have an obligation to make sure vacancies on courts are filled.
And the place where senators should care most about filling judicial vacancies should be their own home states. The interests of constituents in access to judges and justice should be a priority over playing partisan politics.
And this is why, until recently, it usually was not a problem for the Senate to allow home state senators an informal veto—implemented through the so called “blue slip” process—over confirmation of judges in their own states. Senators might try to block nominees from other states with filibusters and other tactics, but would protect their own constituents by working out a deal with the White House for nomination and confirmation of an acceptable nominee in their state.
On Tuesday, the Senate Judiciary Committee held hearing for six District Court of Arizona nominees:
Steven Paul Logan,
John Joseph Tuchi,
Diane J. Humetewa,
Douglas L. Rayes, and
James Alan Soto.
These nominees had been delayed in committee pending agreement by Sen. Flake (R-Ariz.), who recently returned his blue slips, allowing their nominations to progress. Rosemary Marquez is currently the longest pending nominee, having been originally nominated on June 23, 2011. If confirmed, Diane Humetewa would be the first Native American woman federal judge. All of these nominees would fill judicial emergencies, and desperately needed by the District of Arizona which is operating with six out of 13 judgeships vacant.
On Wednesday, the North Carolina NAACP sent a letter to Senator Burr (R-N.C.) requesting that he return his blue slip for Jennifer May-Parker so that her nomination can proceed. May-Parker was nominated to the Eastern District of North Carolina on June 20, 2013 for a seat vacant since December 31, 2005. This is the second-oldest vacancy in the country. The oldest vacancy is for the Ninth Circuit, which became vacant on December 31, 2004. John B. Owens was nominated for that seat and his nomination is on the Senate floor pending action by the full Senate.
The Congressional Black Caucus is publically urging President Obama to select more African American nominees, especially in Alabama and Georgia, states with large African American populations but few African Americans on the bench.
This week saw a flurry of action on the judicial nominations front.
On Monday, January 13, the Senate confirmed Robert Wilkins to the D.C. Circuit with a vote of 55-43. With his confirmation, the D.C. Circuit is fully staffed for the first time since 1991.
On Thursday, January 16, the Senate Judiciary Committee held votes on 29 nominees, including nine nominees who had already been reported out last year. All 29 nominees were voted out of Committee, including several with connections to ACS’s network. No votes by the full Senate have been set. Quick action, however, could cut the judicial vacancy rate by one-third. The nominees voted out of Committee are:
Carolyn B. McHugh, Tenth Circuit, Voice Vote
John B. Owens, Ninth Circuit, Voice Vote
Michelle T. Friedland, Ninth Circuit, Roll Call Vote, 14-3
Nancy L. Moritz, Tenth Circuit, Voice Vote
David Jeremiah Barron, First Circuit, Call Vote, 10-8
Jeffrey Alker Meyer, District of Connecticut, Voice Vote
Timothy L. Brooks, Western District of Arkansas, Voice Vote
James Donato, Northern District of California, Voice Vote
Beth Labson Freeman, Northern District of California, Voice Vote
Pedro A. Delgado Hernandez, District of Puerto Rico, Voice Vote
Pamela L. Reeves, Eastern District of Tennessee, Voice Vote
Vince Girdhari Chhabria, Northern District of California, Roll Call Vote, 13-5
James Maxwell Moody, Jr., Eastern District of Kansas, Vote
Matthew Frederick Leitman, Eastern District of Michigan, Voice Vote
Judith Ellen Levy, Eastern District of Michigan, Voice Vote
Laurie J. Michelson, Eastern District of Michigan, Voice Vote
Linda Vivienne Parker, Eastern District of Michigan, Roll Call Vote, 14-3
Christopher Reid Cooper, District of Columbia, Voice Vote
M. Douglas Harpool, Eastern District of Pennsylvania, Voice Vote
Gerald Austin McHugh, Jr., Eastern District of Pennsylvania, Roll Call Vote, 12-5
Edward G. Smith, Eastern District of Pennsylvania, Voice Vote
Sheryl H. Lipman, Western District of Tennessee, Voice Vote
Stanley Allen Bastian, Eastern District of Washington, Voice Vote
Manish S. Shah, Northern District of Illinois, Voice Vote
Daniel D. Crabtree, District of Kansas, Voice Vote
Cynthia Ann Bashant, Southern District California, Voice Vote
Jon David Levy, District of Maine, Roll Call Vote, 15-2
Theodore David Chuang, District of Maryland, Roll Call Vote, 10-8
George Jarrod Hazel, District of Maryland, Voice Vote
Happy 2014. With the New Year comes a renewed hope of expediency in the judicial nomination and confirmation process. The pace of progress, however, remains to be seen.
Before the Senate recessed in December, it failed to pass a resolution by unanimous consent that would have allowed the existing judicial nominations to be held over until 2014. As a result, 55 nominees were returned the White House. Robert Wilkins, nominated to the D.C. Circuit, was the only nominee not returned, because the procedural status of his nomination allowed him to be held over without unanimous consent. Cloture was invoked on his nomination on January 9, and a final vote is scheduled for 5:30 p.m. on Monday, January 13.
On January 6, President Obama re-nominated 54 of the nominees whose names were returned to the White House in December. All of these nominees were returned to the Senate Judiciary Committee. Those who already had a confirmation hearing do not have to repeat the hearing process, but all nominees, including those voted out of Committee last year, must be voted out onto the Senate floor.
The only candidate not re-nominated was William Thomas, who had been nominated to the Southern District of Florida. His nomination was dropped because of opposition from Sen. Marco Rubio (R-Fla.), who had previously supported Thomas. Had he been confirmed, Thomas would have been the first openly gay African American federal judge.
On January 8, the Senate Judiciary Committee held a hearing for three nominees: James D. Peterson (W.D. Wis), Nancy J. Rosenstengel (S.D. Ill.) and Indira Talwani (D. Mass.).
As the end of 2013 quickly approaches, Senate leaders are working to move as many judicial nominations as possible before recess. However, some Senators continue to obstruct progress at every opportunity, slowing the pace of confirmations.
Brian Davis was confirmed to the Middle District of Florida on December 20, and is the only nominee to be confirmed since our last update. There has been speculation about a possible deal that will allow some nominees to be confirmed, or allow all nominees to be held over into the New Year, thereby avoiding the nominees being sent back to the White House. If sent back, they will need to be re-nominated by President Obama in January.
It seems most likely that nominees currently pending on the Senate floor, including Robert Wilkins for the D.C. Circuit, will not receive votes until the Senate returns in January.
Obstruction continues at the Judiciary Committee level, too. On Wednesday, December 18 five nominees were scheduled for a committee hearing. Minority members of the Committee invoked the two-hour rule, causing the hearing to be delayed until Thursday. Also on Thursday, December 19, the Committee was poised to vote on 15 nominees. Prior to the Committee meeting Senator Leahy (D-Vt.) issued a statement stressing the importance of reporting these nominees out of Committee before recess. Senator Grassley (R-Iowa), however, requested that the nominees be held over, as is often the case when nominees appear before the Committee for the first time for a vote. Senator Leahy acquiesced, but noted that all of these nominees had been scheduled for votes more than once before, but the Committee had not had quorum to vote.