The Senate heads into President Obama’s lame duck year with likely judicial nominee battles on its schedule. Although Senate leaders reached an agreement two weeks ago to vote on five federal judge candidates in early 2016, fourteen judicial Obama appointments still remain.
Senate Minority Leader [crscore]Harry Reid[/crscore] excoriated the Republican led Senate over the issue earlier in December, claiming the “American people are paying the price.”
However, Republicans say Democrats are the ones paying the price for pushing through 11 judicial nominees after enacting the “nuclear option” in the previous Congress — a parliamentary move during Reid’s time as Majority Leader that limited filibusters on most presidential nominees.
“Had we been able to consider those nominees this year under regular order, the Senate would have confirmed more judges this year,” Iowa Republican Sen. [crscore]Charles Grassley[/crscore], the Judiciary Committee Chairman, said during remarks on the floor in October.
“It’s ridiculous,” Democratic Vermont Sen. [crscore]Patrick Leahy[/crscore], who chaired the Judiciary Committee when Democrats held the majority, told Politico in July. “They’re trying to politicize the courts. And it’s irresponsible. I refused to do that with President Reagan. I refused to do that with President [George W.] Bush.”
Leahy’s history of moving presidential nominees depended on which party was in the White House. Democrats began referring to the “Thurmond” rule in 2004, when George W. Bush appointments were obstructed in the upper chamber.
A senior Democratic senator described the rule to The Hill in July of 2004 as, “In election years, judges are not normally brought up after July first.” As chairman of the judiciary committee at the time, Leahy referenced the rule as a reason to not confirm anymore Bush judicial nominees.
Grassley said in November that Obama’s judicial appointments were treated as fairly as Democrats treated George W. Bush’s appointments around the same time of his presidency. Grassley noted that as of October 5, the Senate confirmed 314 of Obama’s judicial nominations, while 291 of Bush’s nominations were confirmed around the same time in 2007.
Leahy interpreted the Thurmond rule differently, the Hill notes, when Bill Clinton was in the Oval Office. In 1997, the Vermont senator claimed the “so-called” Thurmond rule happens “about the last few months of [the president’s] term in office,” and later went after Republicans for bottlenecking the confirmation process for Clinton nominees.
Republicans agreed that a that a Thurmond rules exists but that it simply was more of a tradition that votes on controversial nominees would not be brought to the floor as opposed to no votes on any nominees at all.
Conservative grassroots activists believe the GOP has ceded too much already to the Democrats in terms of appointments and want Senate Majority Leader [crscore]Mitch McConnell[/crscore] and other Senate Republicans to obstruct Obama nominee confirmations as much as possible.
Americans for Limited Government President Rick Manning urged members of the U.S. Senate not to confirm any more federal judges nominated by President Obama in his final year in office.
“Senate Republicans are scheduled on Jan. 11 to consider the nomination of Luis Felipe Restrepo for the Third Circuit Court of Appeals, but why?” Manning asked in a statement. “Obama has already had more than 300 federal judges confirmed to the federal bench, about as many as his predecessor, George W. Bush. Why are Senate Republicans giving any more judges to President Obama in his lame duck year when their goal should be to bottle up the remainder of the Obama agenda?”
Manning accuses Republicans of ceding the “power of the purse” by allowing the funding bill to pass and the confirmation process is the “last remaining constitutional power that the Republicans in the Senate hold over this Administration, and they should use it.”
Liberal activists, however, argue that Republican senators bottlenecked the confirmation process more since GOP numbers in the upper chamber increased from 41 to 55 in 2010.
“Breaking tradition, many Senators, especially Republicans, refuse to suggest nominees from their state or let nominations to proceed in the Judiciary Committee or Senate Floor,” a piece in the Scholar Strategy Network claims.
“Obama nominees have to fill out much more lengthy questionnaires, and judicial nominees who self-report their youthful drug indiscretions are now held to be disqualified if they used marijuana at any time after passing the bar examination or used any other illegal substance after the age of 18,” the piece says.
Individual senators can place a hold on any nominee to stall the process of a confirmation. Some GOP members released holds on certain Obama nominees in December, but as Republicans and Democrats search for ways to unite following the 2016 primaries, the focus on Obama’s final judicial appointments could get intense.