Friday, May 6, 2011

The Filibuster and Judicial Nominees

The Senate this week voted 50-44 along party lines to seat John McConnell on the U.S. District Court for Rhode Island 14 months after President Obama first nominated him. 

To get to the vote, however, the Senate had to invoke cloture to break a Republican filibuster.  Republicans opposed McConnell because of his positions on behalf of clients (including a public nuisance theory against lead paint manufacturers), his contracts with states to represent them in certain cases, and an allegation that he lied to the Senate Judiciary Committee during his confirmation process.  (Senator Cornyn outlined the case against McConnell in Wednesday's Congressional Record, at S2596.)

Senator Leahy responded on the merits and recounted the history of legislative deference to Presidential district court nominees under its "advice and consent" role:

I cannot recall a single instance in which a President's judicial nomination to a Federal trial court, a Federal district court, was blocked by a filibuster. . . .

Looking back over the last six decades, I found only three district court nominations--three in over 60 years--on which cloture was even filed. . . .  All three of those nominations were confirmed. . . .

From the start of President Obama's term, Republican Senators have applied a heightened and unfair standard to President Obama's district court nominees.  Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home State Senators who know the needs of their States best.  Instead, an unprecedented number of President Obama's highly qualified district court nominees have been targeted for opposition and obstruction.

That approach is a serious break from the Senate's practice of advice and consent.  Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Out of those 2,100 nominees, only five have been reported by party-line votes.  Only five total in the last 65 years.  Four of these five party-line votes have been against President Obama's highly qualified district court nominees.  Indeed, only 19 of those 2,100 district court nominees were reported by any kind of split rollcall vote at all, and five of those, more than a quarter, have been President Obama's nominees, including Mr. McConnell.

Cong. Rec. at S2599.  Leahy also recalled that Republicans "[j]ust a few years ago" argued that filibusters against judicial nominees were unconstitutional.  (Leahy stopped short of agreeing with that position.)

Ultimately the cloture vote on McConnell's nomination passed 63-33, with 11 Republicans joining the Democrats.

McConnell's process is a poignant case study in the Senate's powerful role in judicial appointments and ultimately in the work of the judiciary.  (Nearly 10 percent of all federal judgeships are vacant.  37 of these are considered to be "judicial emergencies."  We covered one of those emergencies here.)

It's also a reminder of the many powers of the minority party in the Senate, in judicial nominations and more generally in the work of the Senate.  For example, in addition to filibustering McConnell, Republicans called for a quorum in the debate referenced above.  The quorum call can eat up floor time and delay proceedings, sidetracking the body and holding up its work.

For more on the status of federal judicial nominations, check out


Appointment and Removal Powers, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink

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