Leahy Calls For Action On Stalled Legal Nominees

There is “no excuse” for fact that conservatives are stalling many of President Obama’s top legal nominees, said Senate Judiciary Chair Pat Leahy (D-VT) at a committee hearing today. Not one of President Obama’s judicial nominees has been confirmed by the Senate, and the nominees awaiting a floor vote include:

[F]our nominees for top Justice Department jobs, the nominee to chair the U.S. Sentencing Commission, and nominees for the U.S. Courts of Appeal for the 2nd, 4th, and 7th Circuits. . . . Some of the nominees, such as Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, have drawn threats of filibusters from Republicans. But others, including Thomas Perez to lead the Justice Department’s Civil Rights Division, are largely non-controversial. In all cases, senators haven’t come to agreement to bring them to a vote.

Much of the right’s motivation for obstructing these nominees can be summed up in two words: floor time. Absent unanimous consent from all senators, no issue may be considered by the full Senate unless it is given time on the Senate floor for debate. Although such a debate can be cut off by a cloture motion — a vote receiving the support of 60 senators — such a motion itself consumes floor time. Thus, by indiscriminately objecting to President Obama’s nominees, a single senator can effectively force the Majority to choose between confirming essential government personnel or advancing health care reform, cap and trade, the federal budget or anything else on the Senate’s agenda.

But right-wing hopes that Obama will fail only partially explain conservatives’ strategy to keep the President’s nominees off the federal bench. In truth, the far right has rallied behind seizing the judiciary to accomplish right-wing ends ever since they began dotting the South with “Impeach Earl Warren” billboards to protest desegregation. More recently, the Republican-controlled Judiciary Committee gave a single senator authority to obstruct any one of President Clinton’s nominees — a power segregationist Senator Jesse Helms (R-NC) used to block every single nominee from North Carolina.


During George W. Bush’s Presidency, however, the right hummed a different tune. Suddenly, senators lost their power to veto nominees, and battering-ram tactics like the “Ginsburg Rule” and the “Nuclear Option” entered the political lexicon. With a rubber-stamp Senate in his corner, President Bush confirmed some of the worst federal judges since the Hoover Administration; judges like Janice Rogers Brown, who believes that the New Deal is unconstitutional and the Social Security is “cannibalism;” Jeffery Sutton, who devoted much of his career to attacking Medicaid and immunizing state employers from civil rights law; and J. Leon Holmes, who once wrote that a “wife is to subordinate herself to her husband” and “place herself under the authority of the man.”

Moreover, conservatives have long understood the need to appoint young, up-and-coming attorneys to the courts in order to create a deep bench of future Supreme Court nominees. So far, the average age of President Obama’s nominees is 55, five years older, on average, than the men and women given lifetime appointments by George W. Bush, and most of the names on Bush II’s “short list” of potential SCOTUS nominees were nominated by Reagan or Bush I when the nominees were in their 30s or early 40s.

In other words, the right has long followed a strategy of easing their own judges through the Senate, bottling up progressive nominees, and making sure that their team simply outlives ours. The result is a judiciary that is both dominated by conservatives and free to impose a radical vision on the law. If this trend is ever going to be reversed, the Senate needs to take up Leahy’s call to confirm Obama’s nominees right away.