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Sen. Ron Johnson Already Playing Calvinball With Judicial Confirmations

By Ian Millhiser  

"Sen. Ron Johnson Already Playing Calvinball With Judicial Confirmations"

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Sen. Ron Johnson (R-WI) has been in office for less than a week, but he’s already contributing to the right’s unprecedented campaign of obstruction against President Obama’s judicial nominees:

Newly elected GOP Sen. Ron Johnson said Friday he should have been consulted before the White House resubmitted the nominations of Louis Butler and Victoria Nourse for federal judgeships and is at this time opposed to their confirmation.

“My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts. It’s unfortunate in this case that the voters of Wisconsin who expressed their wishes on November 2nd were completely ignored,” said Johnson in a statement. . . .

The nominations of Butler and Nourse were part of a wholesale move this week by the president to resubmit more than 40 judicial nominees that were pending in the Senate when the last session of Congress ended. In not consulting Johnson or other new senators, the White House was in effect treating the nominations as old business, not new business.

Johnson’s protest is an amazing display of chutzpah, since the only reason these nominees weren’t confirmed last year is because his fellow conservatives raised roadblock after pointless roadblock to keep dozens of judicial vacancies open. Moreover, even if Johnson were right that these two nominees are somehow new business, he is exaggerating the role of home state senators in a post-George W. Bush Senate.

During the Clinton Administration, former Senate Judiciary Chair Orrin Hatch (R-UT) gave just one senator an effective veto over nominees from their state. The Hatch Rule, however, appears to have been invented out of thin air for the Clinton presidency and evaporated the minute President Bush took office:

When Senator Edward Kennedy (D-MA) and then-Senator Joe Biden (D-DE) chaired the Judiciary Committee during the Reagan and Bush I Administrations, both allowed senators to block nominees from their home state–but only if both home state senators agreed to veto the nominee by failing to return a blue slip.  During the Clinton Administration, then-Chair Orrin Hatch (R-UT) changed the rules, allowing a single senator to unilaterally veto a nominee.  Segregationist Senator Jesse Helms (R-NC) used this authority to block every single one of Clinton’s nominees from North Carolina.

Yet when George W. Bush took office, Chairman Hatch decided to change the rules again.  During the Bush II era, nominees were moved forward despite objections from both of their home state senators.  So for our readers who are keeping track of this at home, the blue slip rules work something like this:

  • When Reagan and Bush I were in office, both home state senators had to agree to block a nominee.
  • When Clinton was in office, one senator could unilaterally veto a nominee.
  • When Bush II was in office, everyone gets confirmed!

Ultimately, however, it is not up to Johnson and the other members of the Senate minority to decide whether to reinstate the Hatch Rule now that one lone senator has decided to throw a tantrum. Senate Judiciary hearings are scheduled by the Chair of the Judiciary Committee, not by the junior senator from Wisconsin.

Of course, should Judiciary Chair Pat Leahy (D-VT) decide to schedule hearings for Butler and Nourse, it is likely that Johnson and his fellow conservatives will use that as an excuse for their continued obstruction of President Obama’s nominees. But the unfortunate truth is that the right has no credibility to make such excuses. Thanks to their unprecedented obstruction campaign, nearly one in nine federal judgeships are currently vacant and Obama has the lowest confirmation rate of any modern president. There is simply no reason to doubt that this campaign will continue anyway, regardless of what Obama and Leahy do.

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