A little over three weeks ago, the Senate confirmed Judge Robert Wilkins to a federal appellate judgeship in Washington, DC, making Wilkins an unexpectedly unique individual. No other attorney has received such a vote; Wilkins is the only judge confirmed so far in all of 2014.
This halt in judicial confirmations is the fallout from a battle over whether President Obama is allowed to appoint anyone to the second most powerful court in the country. Wilkins was the last of three judges confirmed to the United States Court of Appeals for the District of Columbia Circuit, a court which enjoys outsized influence due to the large number of major national security matters and cases involving major regulatory action heard by its judges. Republicans enjoyed a majority on this court for many years — a majority they often wielded to achieve major conservative policy victories.
At times, Republicans were quite candid that they were filibustering all of Obama’s nominees to this court because they did not want Democrats to “switch the majority” on the D.C. Circuit. Before Obama’s appointments to this court were confirmed, it was dominated by conservative — often very conservative — Republican judges. Now, Democrats control a majority of the court’s active judgeships and with it the power to overrule decisions by the D.C. Circuit’s conservatives. Senate Republicans did not allow this power shift to happening willingly — indeed, their Democratic counterparts had to invoke a procedure allowing them to change the Senate’s rules by a simple majority vote in order to frustrate Republican filibusters.
With the filibuster gone, however, Senate Republicans still retain significant power to gum up the confirmations process. Under a temporary rules agreement reached in early 2013, a fairly small group of senators can force the Senate to waste 30 hours of floor time every single time it confirms a federal appeals court judge, and 2 hours every time it confirms a trial judge (if this temporary agreement is allowed to expire, trial judges will also require 30 hours). Normally, these wasted hours — the primary purpose of this time is to allow last minute amendments to bills, but judicial nominees cannot be amended — are waived by unanimous consent of all senators, but Senate Republicans are now refusing to grant this consent in response to the rules change Democrats pushed through in order to confirm the D.C. Circuit nominees.
Even a few hours of wasted time can add up when spread across many judicial confirmations, so these hours effectively force Senate Majority Leader Harry Reid (D-NV) to choose between confirming judges or moving forward with other Senate business. For the moment, Reid appears to be holding out in the hopes that Senate Republicans will agree to confirm a batch of nominees near the end of February.
Additionally, in states where at least one senator is a Republican, a relic of a mostly dismantled patronage system allows that senator to unilaterally veto any nominee to a judgeship in his state. Senate Judiciary Chair Patrick Leahy (D-VT) has the power to eliminate this remainder of the patronage system, but he has thus far refused to do so.