Last November, Senate Democrats invoked a procedural maneuver that allowed them to confirm judicial nominees by a simple majority vote, thus cutting off the GOP’s ability to maintain control over a key federal appeals court by simply refusing to permit anyone to be confirmed. So it’s a bit odd that, just over a month after Senate Republicans effectively lost their ability to veto nominees from the minority. President Obama decided to outsource selecting nominees to most of the open judicial seats in Georgia to two Republican senators.
Presently, five judicial vacancies need to be filled in Georgia. Yet, 2013 wound down, Obama agreed to a deal that would place most of these seats in Republican hands. As we explained in September when this deal was under consideration,
Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) would agree to stop blocking attorney Jill Pryor’s nomination to the United States Court of Appeals for the Eleventh Circuit — a nomination that they have effectively held up for well over 1000 days. In return, Obama would nominate a George H.W. Bush-appointed judge — Chief Judge Julie Carnes of the Northern District of Georgia — to the other open seat on the Eleventh Circuit, creating a fourth vacancy on this federal trial court. Chambliss and Isakson would then be allowed to select three of the four attorneys named to these seats.
Now that Obama has formally nominated this Republican slate of judges, his usual allies in Georgia’s congressional delegation are not happy. Shortly after the nominees were announced, civil rights legend Rep. John Lewis (D-GA) warned that these nominees “do not adequately reflect the diversity of the northern district and that the selection process lacked meaningful community input,” and that “several nominees include persons who have advocated in favor of Georgia’s voter ID laws and for including the Confederate Battle Emblem as part of the Georgia State Flag.” He was joined in his complaint about these nominees by several of his fellow civil rights leaders, as well as Reps. Hank Johnson (D-GA) and David Scott (D-GA).
On Friday, Rep. Scott pushed even harder, writing a letter to Senate Judiciary Chair Patrick Leahy (D-VT) asking to testify against the nominees — “It is an abomination that these nominees for lifetime appointment were drafted in secret, not vetted by any legal groups among the President’s supporters, and announced on a holiday weekend. We must not allow lifetime appointed judges to be rammed through the hearing process without sufficient input from the people who will be affected by their future judicial actions.”
The most likely reason why President Obama agreed to this GOP-friendly package of nominees is something known as the “blue slip,” which allows home state senators to effectively veto judicial nominees from their state. Although former Judiciary Chair Orrin Hatch (R-UT) abandoned the blue slip rule in favor of process that allowed judicial nominations to move forward “provided that the Administration  engaged in pre-nomination consultation with both of the home-state Senators,” Leahy has clung to the rule during Obama’s presidency. He could eliminate it at any time, however, and take away the ability of Republican senators to extract deals such as this one.
In the meantime, Senate Democrats have another option. They can confirm Jill Pryor and other nominees who are in line with the voters who gave them a majority in the Senate, while voting down the four nominees selected by Republicans.