Bauer, pictured above, spoke at an event organized by the liberal American Constitution Society and echoed what members of both parties have said for years, that the Senate confirmation process is broken. He said the Obama administration wants to move past debates about who’s at fault for delays and find a way to get nominees up-or-down votes.
“In this new Congress, we will continue to make the case for treating the confirmation of judges as the priority, the urgent priority, that it is. We will make this case from today until the end of this session and into the next,” Bauer said.
The administration has been ramping up its interest in judicial nominations in recent months, as hopes for moving major legislation through Congress have appeared to dim. The pace of nominations coming out of the White House has quickened, and Bauer’s speech was his first on the subject since he became the president’s chief lawyer 13 months ago.
In a panel discussion after Bauer’s speech, one Republican lawyer noted the shift. “I’m glad that the White House is finally making judicial nominations a priority,” said Makan Delrahim, a partner at Brownstein Hyatt Farber Schreck who’s a former chief counsel to Sen. Orrin Hatch (R-Utah) on the Senate Judiciary Committee.
Bauer did not call for any changes to Senate rules, and he did not single out any nominees for attention. Instead, he described two dimensions of the slowed-down process. First, he said, many nominees sit “basically ignored” on the Senate’s calendar.
“No shouting on the floor. Just: nothing. It is as if...it does not matter at all,” he said. “It of course matters a great deal, to the nominees, to the courts to which they were nominated to serve and to the parties before those courts.”
Second, he said, senators can be vague in their discussions with the White House about why they oppose Obama’s choices both before and after the nominations have become public. “In my experience, these concerns, however strongly expressed, are all too often hard to really pin down,” Bauer said. “Sometimes it’s just a question of personal preference. The president has selected a candidate for nomination, and a particular member would have chosen differently.”
The way to move forward, he said, is to “re-examine” the process in a bipartisan way. He said senators should be able to agree on several principles, including that the pace of confirmations is not acceptable, that the president will consult with senators but may have “reasonable” differences and that each nominee should eventually receive a vote.
There are 101 vacancies on the district and circuit courts, according to the Administrative Office of the U.S. Courts.
Though Bauer did not highlight any nominees by name, one questioner in the audience did ask about the renomination of Goodwin Liu, for the U.S. Court of Appeals for the 9th Circuit, and other picks who have been the biggest Republican targets. Bauer said he expects all to receive a vote. “We’re fully committed to them all. We will work the process very, very hard,” he said.
In response to a separate question, Bauer said the administration is unlikely to use the recess-appointment power for judicial nominees, in part because they would be temporary appointments. “Recess appointments are quite an inadequate response” to problems with the process, he said. (The Supreme Court has never ruled on whether such appointments are constitutional, as this report (PDF) explains.)
National Law Journal photos by Diego M. Radzinschi. Updated at 3:49 p.m. with the audience questions.