Despite a change in the Senate rules designed to bring an end to years of Republican obstruction of judicial nominees, the fight over the federal courts may be far from over. This week, President Obama renominated 54 judicial nominees whose nominations Republicans had stalled and sent back to the White House last year by refusing to hold hearings on all but one:
Judge Robert Wilkins, who was nominated to the D.C. Circuit and could get a Senate confirmation vote any day now.
The recent Senate rule change, to prevent the filibuster of any but the highest level executive appointments, prevents Republicans in the body from directly blocking or filibustering this latest rounds of nominees. But nothing in the rule change prevents Republicans from dragging their feet and slowing down the confirmation process by refusing to attend committee meetings or employing other procedural tactics for delay.
Responding to the nominations, Marge Baker, executive vice president of People for the American Way, said in a statement, “It is encouraging that the White House has taken the earliest possible opportunity to put these 54 nominees back on the path to Senate confirmation. This is an especially urgent matter given that 22 of these nominees would fill officially-designated judicial emergencies.”
Perhaps seeking to quell some of the furor in the Senate Judiciary Committee and avoid a future battle over a different Senate tradition, President Obama did not renominate William Thomas. Thomas, a nominee for the U.S. District Court for the Southern District of Florida, was single-handedly blocked by Sen. Marco Rubio (R-FL), who used what is known as a “blue slip,” a process that gives senators de facto veto power over nominees from their home state. If confirmed, Thomas would have been the first Black, openly gay federal trial judge. Senate Democrats accused Rubio of abusing the blue slip tradition in blocking Thomas. Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) said in December in remarks on the Senate floor that Democrats were willing to look at changing the blue slip tradition as well: “I have heard, however, some suggestion that Republicans will now seek to delay judicial nominations by exploiting a Senate tradition known as the blue slip. I will continue to honor the blue slip policy as it currently stands, but I hope that Republicans will not abuse this tradition and force me to reconsider.”
Failing to renominate Thomas may not be the only concession to Republicans on judicial nominations. Among those renominated by the president is a controversial slate of nominees from Georgia who have drawn heavy criticism from civil rights leaders and Democrats, including calls to pull their nominations. They include Mark Cohen, an attorney who defended Georgia’s voter identification law in court, and Michael Boggs, who as a Georgia legislator voted to keep the Confederate symbol in the state flag. Cohen and Boggs’ nominations are reportedly part of a deal the Obama administration struck with Georgia Republican senators last September to try and get nominations moving. In exchange for their nominations, Republicans agreed to stop blocking the nomination of Jill Pryor to the 11th Circuit Court of Appeals.
The Senate Judiciary Committee has meetings on judicial nominees scheduled this week and is currently slated to consider 29 candidates, including five circuit seats and 24 district court seats. It’s the first time the committee will meet since the rule change, which Republicans adamantly opposed, and could
reveal how much further Republicans intend to push the fight over the federal courts.