A Stupid Senate Tradition Will Probably Keep A Top Federal Judgeship Unfilled Forever


strom2An absurd Senate practice, rooted in an abandoned patronage system dismantled in the Carter Administration, is now standing between one of President Obama’s most promising judicial nominees and the federal bench. And this isn’t the first time this has happened. George W. Bush was also unable to fill the exact same seat due to the exact same absurdity. And, unless something changes in the Senate, it is unlikely this seat will ever be filled again.

The problem arises out of an old practice of naming federal judges. For much of American history, lower court judgeships were mostly treated as patronage jobs doled out by senators. A certain number of judgeships were allocated to each state, the state’s senators would inform the president who they wanted him to nominate to those seats, and the president would follow the senator’s direction. For court of appeals judges, who typically hear cases drawn from many states, the appeals court’s judgeships would be bound to a particular state — so if a federal appeals court judge from Alabama retired the replacement would be chosen by Alabama’s senators.

Although this old patronage system was mostly dismantled by changes in the nominating process implemented by Presidents Jimmy Carter and Ronald Reagan, some relics of it remain. One of these relics is that appeals court judgeships still remain bound to particular states.

Enter Stephen Trott. Judge Trott lived in California when he was nominated to a seat on the United States Court of Appeals for the Ninth Circuit, but he moved to Idaho after being confirmed. The predictable result is that California’s senators insist that anyone nominated to replace him must be from California, and Idaho’s senators insist that this seat belongs to Idaho. When President Bush nominated Judge Randy Smith, an Idahoan, to Trott’s seat, the nomination was blocked by California’s senators (although Smith was eventually confirmed after he was renominated to a different seat on the same court). Now it’s Obama’s turn to deal with this same absurdity.

President Obama’s nominee to fill this seat, attorney John Owens, practices law in California. Which means that, shortly after Owens was named, Idaho Sen. Mike Crapo (R) complained that he “was not consulted on the decision and is not happy with the nomination.” In light of the Senate’s filibuster rules and the unity Crapo’s fellow Republicans have shown in filibuster fights, it’s likely that Owens will prove unconformable simply because he committed the sin of not living in Idaho. And, of course, it’s not hard to predict what would have happened if Obama had nominated an Idaho lawyer to this open judgeship. California’s senators would almost certainly take their own steps to block that nominee.

In other words, John Owens is too crazy to fly missions, but if he asks to be grounded, then he proves that he’s sane enough to fly missions.

There is, however, an easy way for Senate Democrats to break this logjam and prevent future attempts to block nominees. They can invoke the so-called “nuclear option,” and take away Crapo’s ability to enforce the remnants of a largely dead patronage system.