Democrats Have Short Memory on Judicial Nominations, AP Says
November 5, 2009Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees.
The mark might not be as dark as Democrats make it seem.
Of the 27 judicial nominations Obama has made so far, all five brought up for votes in the Senate have won relatively quick confirmations, including new Supreme Court Justice Sonia Sotomayor.
So what is this "dark mark" that Senate Judiciary Committee Chairman, D-Vt., talks about?
It's primarily two federal judges -- one from Indiana, the other Maryland – who have been waiting five months for Senate Majority Leader Harry Reid, D-Nev., to bring their nominations for appeals court promotions to the Senate floor.
Republicans contend they are activist judges, and Reid hasn't forced the issue -- although he said Wednesday he might do so by Veterans Day for at least one of the nominees.
One other nominee has been waiting since Sept. 10. But seven others have been waiting from only one to five weeks. That's not a long time for the Senate, which prides itself as a deliberative body, and Republicans say they're ready to vote on most of them.
Democrats have a record of their own that is far from being a bright light. Just three years ago, they were blocking votes on some of former President George W. Bush's more conservative judicial nominees.
Several of Bush's nominees waited for years -- two years for Chief Justice John Roberts when he was nominated for a previous appellate court post.
Priscilla Owen waited through four years of Democratic blocking tactics before she was confirmed for the New Orleans-based federal appeals court. Miguel Estrada withdrew his bid for an appellate seat after a Democratic filibuster lasting more than two years.
As an institution that lets the minority party use rules to block legislation and nominations, the Senate often acts as a filter for preventing the more politically strident bases of each party from tilting the judicial branch too much one way or the other.
While moderate nominees win confirmation easily, both parties use what is essentially the same argument to block or at least delay action on others: The particular nominee would substitute his or her own liberal or conservative philosophy for the law and the Constitution.
"It would be wrong for us to be a rubber stamp for each nominee," Alabama Sen. Jeff Sessions, the senior Republican on the Judiciary Committee, said in a recent confirmation dustup in the Senate.
That sounds familiar.
After Estrada gave up, Sen. Edward M. Kennedy, D-Mass. said, "This should serve as a wake-up call to the (Bush) White House that it cannot simply expect the Senate to rubber stamp judicial nominations."
The Republican stall at this point is focused on two appellate court judges whose nominations were sent by the Judiciary Committee to the full Senate on June 4:
-- David Hamilton of Indiana, a U.S. district judge and nephew of former Democratic Congressman Lee Hamilton, chosen for the Chicago-based appeals court. Reid said he wants a vote on Hamilton by Veterans Day. He'll probably need a super majority of 60 to get one.
-- Andre Davis, a district judge in Maryland, nominated for a seat on the appellate court headquartered in Richmond, Va.
Sessions made it clear his party will put up a fight against confirming either. He cited Hamilton's position in the late 1980s as a vice president for litigation and board member of the Indiana chapter of the American Civil Liberties Union. Sessions also complained about Hamilton's judicial rulings.
"Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard," Sessions said.
In Davis' case, Sessions made the delay sound like a payback to Democrats, although he denied that was his purpose.
"We have had a number of battles over the failure to fill some of the vacancies on that court," Sessions said, referring to stalls of Bush's nominees for the Richmond-based appeals court -- once known for its conservatism.
Sessions said Republicans have a problem with only one other current nominee before the Senate: Edward Chen, chosen for a U.S. district court seat in California. But Chen's nomination was only approved by the committee on Oct. 15, hardly enough time to make the case for a stall.
"Most of the nominees ... will go through in an expeditious manner," Sessions said. He said Republicans are ready to support Beverly Martin, nominated for the Atlanta-based appeals court, but Democrats have not scheduled a vote. Her nomination reached the full Senate Sept. 10.
In the Senate's five judicial confirmation votes this year, only Sotomayor generated significant Republican opposition, and she was approved 68-31.
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