After months of backlog and partisan recrimination, Senate leaders reached an agreement to move forward with judicial nominees this afternoon that assures 12 federal district court judge picks and two circuit court selections will get confirmation votes before the summer.
Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Kent.) struck the deal amid a threat from some Republicans to filibuster judges as a response to President Barack Obama’s controversial recess appointments to consumer and labor agencies two months ago.
The agreement came just hours before Reid planned to begin a series of procedural votes that would have forced confirmation votes through the Senate floor, but might have taken weeks to accomplish.
The agreement means the Senate will act on two judicial nominees per week before May 7, which is better than the one-per-week average so far this session, a Senate Democratic aide said. Reid feels the agreement is a step in the right direction but that it is not a remedy to the crisis facing the courts that have judicial vacancies, the aide said.
The two appellate judges in the deal are Stephanie Thacker in the 4th Circuit and Jacqueline Nguyen in the 9th Circuit. The 12 district court judges include Gina Marie Groh of the Northern District of West Virginia; David Nuffer of Utah; Michael Walter Fitzgerald of the Central District of California; Ronnie Abrams of the Southern District of New York; Rudolph Contreras of the District of Columbia; Miranda Du of Nevada; Susie Morgan of the Eastern District of Louisiana; Gregg Costa of the Southern District of Texas; David Guaderrama of the Western District of Texas; Brian Wimes of the Western District of Missouri; Kristine Baker of the Eastern District of Arkansas; and John Lee of the Northern District of Illinois.
After Obama angered Senate Republicans with his recess appointments – during a two-day break in January that even some Constitutional lawyers have concluded doesn't qualify as as actual recess – there were hints that GOP retaliation could come at the expense of Obama’s judicial nominees.
That came to fruition on Capitol Hill this week, when Republicans announced they would bog down the confirmation process for 17 relatively uncontroversial district court nominees — even vote against judges they might have otherwise supported — to highlight what they see as Obama’s unconstitutional sidestep of Senate oversight.
The White House and other Democrats erupted. Reid called it a “political show of obstructionism,” and threatened unusual measures, including votes to cut off debate on the nominees, to force a series of confirmation votes.
Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said this week that Republicans are even opposing the nominees they support, and that Americans seeking justice in their courts should not be forced to wait any longer. “I understand and share the Majority Leader’s frustration,” he said. “He has been unable to obtain the usual cooperation from the minority to schedule debates and votes on these widely supported, consensus nominees,” he said in a statement.
Republicans like Sen. Chuck Grassley called Reid's effort a political stunt, saying Americans want the Senate to tackle problems like gas prices, jobs and the economy, not “spending time on meaningless procedural votes.”
But the strategy also caused a rift within the Senate Republican caucus.
The fight over judicial nominees “is exactly what makes Americans sick of what we’re doing,” said Sen. Tom Coburn (R-Okla.) during a committee hearing this month. “I don’t think we ought to hold up judges, that’s my personal opinion. A lot of my caucus doesn’t agree with that. I think we need to build bridges instead of burn them.”
The most outspoken critic of Obama’s recess appointments — which included Richard Cordray of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board — was Sen. Mike Lee (R-Utah). He said this week that he has the moral high ground and will oppose all nominees, “until such action is taken to ensure that the Senate’s constitutional right to advise and consent to nominees is properly respected.”
Lee did not immediately issue a statement regarding today’s agreement.
White House Chief Counsel Kathryn Ruemmler told reporters in a conference call Tuesday that the need for judges is a crisis, because dockets are extra crowded, and there are unnecessary delays for people and businesses waiting for their day in court.
There are a total 22 judicial nominees awaiting action on the Senate floor — meaning that eight of the judges, including five district nominees and three appellate nominees, didn't make Reid and McConnell's cut. It's unclear if they could be part of any future agreement.
The circuit judicial nominees who did not make the deal include Andrew Hurwitz of the 9th Circuit; Paul Watford, also of the 9th Circuit; and Patty Shwartz of the 3rd Circuit.
The district court nominees who didn't make the list included John Tharp of the Northern District of Illinois; George Russell III of Maryland; Mary Lewis of South Carolina; Jeffrey Helmick from the Northern District of Ohio; and Timothy Hillman of Massachusetts.