Senate Republicans Should Drop the Lame Excuses, and Place Judges on Federal Bench

November 13, 2012

by Jeremy Leaming

A week after President Obama handily won re-election - and his party gained in the Senate - one might think the other party would finally understand that elections have consequences. For example, the president has a duty to appoint judges to the federal bench, and the Senate should be ready to provide some advice and consent, not obstructionism.

Since his first election, however, Senate Republicans have shown tremendous contempt for all things Obama, including the president’s selections to the federal bench. And the result has had devastating consequences for the judiciary. The bench has seen a historic number of vacancies, hovering, at times, near a hundred, many of them deemed judicial emergencies by the Administrative Office of the U.S. Courts of the federal bench. The ringleader of obstructionism in the Senate is its Minority Leader Mitch McConnell (R-Ky.). (He famously said early in Obama’s first term that his party’s top priority was to ensure that Obama would be a one-termer. McConnell has now claimed Obama needs to become more moderate. It looks already as if the senator from Kentucky is going to ignore the president’s landslide victory, the majority of the American people and continue dwelling in a rightwing cocoon.)

He’s being prodded by the rightwing activists who are not ready, likely never will be, to accept the 2012 election results. They’re peddling myths like declaring the Senate does not address judicial nominations during lame-duck sessions or that Obama’s nominees can surely wait a tad longer until he is sworn in for a second term in January.

Then there’s the National Review Online’ s Ed Whelan, long obsessed with keeping the federal bench tilted as far to the right as possible. So, as Media Matters’ Sergio Muñoz points out in this blog post, Whelan is now urging Senate Republicans to stick with obstructionism. Citing a recent NRO piece by Whelan, Muñoz writes that he is calling on continued obstruction of current judicial nominations and expand it “to any and all Supreme Court nominees.”

If senators are earnest about getting work done, reaching compromise or common ground they’d best ignore Whelan’s ranting. Before the senators recessed in October, many for the campaign trail, 19 nominees were ready for up-or-down votes, but they were left pending. Both Senate Majority Leader Harry Reid (D-Nev.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.) had made efforts to urge their Republican colleagues to drop partisanship and vote on the judicial selections, both noting the high vacancy rate the federal bench. At the time, Leahy said, “I have served in the Senate for 37 years, and I have never seen so many judicial nominees, reported with bipartisan support, be denied a simple up-or-down vote for four months, five months, six months, even eleven months.”

The claim that these pending nominations cannot or should not be voted on during the lame-duck session is a disconcerting sign that some in the Republican Party, as already noted, just don’t get elections. Judicial nominations have been confirmed during lame-duck sessions in the past, and even a couple of Republican senators have suggested that some of the judicial selections could or should be voted on soon.

Sen. Tom Coburn (R-Okla.) told The Oklahoman that the nominations of U.S. Magistrate Judge Robert E. Bacharach and Tulsa attorney John E. Dowdell should “fly through” the chamber. Later in the piece, he said he would ask Reid to schedule another vote on Bacharach’s nomination.

Even before the election, Sen. Pat Toomey (R-Pa.) in a letter to Sens. Reid and McConnell called on floor votes on two judicial nominees for the U.S. District Court for the Middle District of Pennsylvania. “I recognize the challenge in confirming all of the pending nominees before the year’s end, but I hope that we can work together to find a way to ensure that at least [the nominees] receive a confirmation vote in light” of the vacancies on the Middle District bench.

The so-called fiscal cliff appears all-consuming and primarily because of Republican obstinacy and refusal to learn from or believe in elections. But the pending nominees, seventeen of them with bipartisan support from the Senate Judiciary Committee, should not be a difficult task. Indeed they should have been given up-or-down votes before the senators escaped town for politicking. The lame-duck session is a fabricated or lame excuse for continued obstruction of judicial selections. For the sake of the country, which deserves a functioning judiciary, senators should give these pending judicial nominations consideration now.

[image via Gage Skidmore]