Grassley Wants Roll Call Vote on Already-Confirmed Ninth Circuit Nominee

If yesterday's voice vote confirmation of Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit seemed a bit too easy, that's because it was.

At least according to Sen. Chuck Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, who took the Senate floor late Tuesday to say he expected a roll call vote on the somewhat controversial judicial nominee.

Hours after Hurwitz got confirmed Tuesday with only a voice vote, Grassley said he was never informed of the move and would not have agreed to it. A roll call vote is necessary if even one senator objects to the voice vote.

Grassley said he was never given the chance to object, and he called on Senate leaders to hold a roll call vote on Hurwitz' confirmation.

"I find this to be quite irregular and outside the recent precedents of this Senate," Grassley said on the Senate floor. "Typically members are informed of such actions in advance. I was not so informed, and I'm the ranking member of the judiciary committee."

On Monday, Senate Democrats had to force a vote to stop debate on the nomination of Hurwitz, an Arizona Supreme Court justice, who authored a law review article in 2002 that some Republicans said showed how he helped create and still admires the legal framework for the controversial Roe v. Wade abortion decision.

Democrats got just enough votes Monday on that "cloture" motion to get around the Republican block, but still needed to vote to confirm him.

Grassley said the last time a circuit judge was confirmed without a roll call vote was on July 15, 2002, when Lavenski Smith was confirmed to the U.S. Court of Appeals for the Eighth Circuit. Smith passed the cloture vote 94-3 and was confirmed by unanimous consent later that day.

Even Barbara Keenan of the U.S. Court of Appeals for the Fourth Circuit — whose cloture vote passed 99-0 — had a roll call vote on her confirmation, Grassley said.

By comparison, Hurwitz survived cloture with 60 votes — the minimum number needed to end debate and move to a confirmation vote.

"It has been our general understanding around here for some time that circuit votes would be by roll call vote, so I'm extremely disappointed that there has been a breach of comity around here," Grassley said.

"It seems to me that all the business of the Senate is based upon trust between one senator and another," Grassley said. "When the ranking member of the judiciary committee isn't notified of this action or any other senator notified of this action, it seems to me that trust has been violated.

"And I won't be satisfied that trust has been restored unless there's some action taken to have a roll call vote on this nomination."

Neither Grassley nor Senate Majority Leader Harry Reid (D-Nev.) immediately returned requests for comment.

Comments

[Rick]

Grassley should place blame on Republicans for failure to not have a roll call vote...There is no way Majority Leader Reid can orchestrate a voice vote (type of confirmaiton) without support from the GOP...I think after cloture is invoked, an up/down vote must occur after no more than 30 hrs. of debate..

[The Old Poltroon]

Wait, what? If stare decisis applies to Roe v Wade, why should a former law clerk's account of his role in the decision disqualify him from the bench?

Or does stare decisis only apply to precedents that the ranking member agrees with?

[Darren Joyce]

Ummm, has Grassley heard of Wikipedia? Tons of circuit judges have been confirmed without roll call votes since 2002 -- go here (http://en.wikipedia.org/wiki/Barack_Obama_judicial_appointments) for a list of Obama circuit judicial nominees who were confirmed without roll call votes, including James Graves, James Wynn, Albert Diaz, Scott Matheson and Kathleen O'Malley. Now, perhaps Grassley meant the last time a (theoretically controversial) circuit judge got a voice vote *after* a cloture vote, yeah, that might have been 2002. But that's slicing things pretty narrowly!