Leahy: Arguments of Convenience Block Judicial Appointments

By:  Patrick Leahy
The National Law Journal

During nearly four decades in the Senate, I have served with Demo­cratic majorities and Republican majorities, through both Republican and Democratic administrations. I have always believed in the Senate's unique protection of the minority party, even when Democrats held a majority in the Senate.

Yet, over the past five years, Senate Republicans have changed the tradition of the Senate with an escalating obstruction of judicial nominations. These actions threaten the Senate's ability to do the work of the American people. Through this obstruction, Senate Republicans have crossed the line from use of the Senate rules to abuse of the rules, exploiting those rules to undermine our ability to address national problems. This same abuse recently, and needlessly, shut down our government, and also poses a threat to the independent, judicial branch of government.

As chairman of the Judiciary Com­mittee, I am especially concerned with how Republican obstruction is damaging our ability to fulfill our constitutional responsibility of advice and consent. The Senate has a unique responsibility to ensure that the judicial branch has the judges it needs to do its job. Unfortunately, Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the federal bench even nominations that enjoy bipartisan support. Senate Republicans have forced cloture, a procedural mechanism to bring a matter to a vote, to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush's two terms. Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly. Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past five years.

Senate Republicans once insisted that filibustering judicial nominations was unconstitutional, but when a Democrat was elected to the White House, they reversed course and filibustered his very first judicial nomination. Judge David Hamilton of Indiana, nominated to the U.S. Court of Appeals for the Seventh Circuit, was a widely respected 15-year veteran of the federal bench and supported by the Senate's longest-serving Republican, Sen. Dick Lugar. Yet, Senate Republicans filibustered Hamilton's nomination, requiring a cloture vote before he could be confirmed after a delay of more than five months. This is the pattern Senate Republicans continued to follow, filibustering 14 of this president's circuit court nominees. According to the nonpartisan Congressional Research Service, the median time that circuit nominees had to wait on the Senate floor before getting a vote during Obama's first term was 132 days, compared to just 18 days for Bush's nominees.

In 2012, Republicans blocked the Senate from voting on a single circuit court nominee nominated by Obama that same year, forcing cloture even for nominees with home-state Republican support. Since 1980, the only other presidential election year in which there were no circuit nominees confirmed who were also nominated that year was in 1996, when Senate Republicans shut down the process against President Clinton's circuit nominees.

The unprecedented obstruction also has affected the Court of Appeals for the D.C. Circuit, widely considered the second most important court in the country. This year, Senate Republicans filibustered the nominations of three exceptionally qualified women — Caitlin Halligan, Patricia Millett and Nina Pillard. Senate Republicans attempt to ­justify their opposition to three of the most qualified attorneys in the country with an argument that the court's caseload does not warrant the appointments. Yet during the Bush administration, these same senators saw fit to confirm judges to the 9th, 10th, 11th and again the 10th seat on the court when the caseload was lower than it is today. Just eight active judges currently are on the D.C. Circuit. When Bush was in office, it operated at full strength with 11 active judges. The same Republican senator who in these pages recently cited caseload concerns once noted that "comparing workloads in the D.C. Circuit to that of other circuits is, to a large extent, a pointless exercise. There is little dispute that the D.C. Circuit's docket is, by far, the most complex and time consuming in the Nation."

Senate Republicans' obstruction is more than unfortunate. It is politics at its worst. Halligan, after being filibustered in March, withdrew her nomination. I will continue to fight for Millett and Pillard to receive a vote on their nominations' merits. On Nov. 18, the Senate will again try to end a Republican filibuster, this time on the nomination of Robert Wilkins. When the vote fails to garner the supermajority needed to end the filibuster, as I expect it will, a majority of senators will need to confront the escalating need to change the Senate rules that the minority have abused for too long.

Sen. Patrick Leahy (D-Vt.) is chairman of the Senate Judiciary Committee.