Many judicial watchers, and privately even pending nominees, think the unexpected opening on the Supreme Court will prod recalcitrant Republicans to move more of President Obama’s lower federal court candidates to justify their blockade of Judge Merrick Garland to the high court.
“The pressure should be on to move non-controversial nominees … to show they can get something done,” said Glenn Sugameli, who runs a nonpartisan judicial nominations project called Judging the Environment.
Sugameli referred to the “Thurmond rule,” named after the late Sen. Strom Thurmond, R-S.C. It means that if the same party does not control the presidency and the Senate, movement on judicial nominees will slow and ultimately cease in a president’s final year.
But the rule was never meant to apply to “consensus nominees,” Sugameli said, noting most of the pending district and circuit court candidates were vetted by Republicans and Democrats and have the blessing of their home-state senators, many of whom are Republicans.
Sugameli said the Senate routinely confirmed consensus lower-court nominees well into September, and sometimes even in lame-duck sessions, because the process of getting candidates to the floor is so lengthy and so many jurisdictions are “judicial emergencies” as defined by the federal judiciary.
“What is the point” of blocking nominees who have the backing of their home-state senators, Sugameli asked.
Senate Majority Leader Mitch McConnell, R-Ky., told reporters last week that he is open to moving judicial nominees other than Garland.
“We’ve continued to talk about the way forward on judges,” McConnell said on Tuesday. “We’ve confirmed a number of them this year. And we’ll continue to do that for the, you know, the foreseeable future.”
Senate Majority Whip John Cornyn, R-Texas, recently told Politico that GOP intransigence is only directed at Garland.
“I don’t think the situation with regard to Justice Scalia’s vacancy is going to have any impact on those other appointments; we’ll be processing those,” he told the site. “The fight is … not about nominations in general.”
Last week, Obama tested the theory by naming six more district court nominees, all in Texas, and two circuit court candidates. On Feb. 25, he put forward a name for a district court judgeship in South Carolina.
Since Scalia’s Feb. 13 death, many judicial nominees have privately said they think their chances of getting confirmed have increased exponentially, said one source close to the process.
Conservative groups are doing all they can to prevent that from happening, however.
Even before Scalia’s death, the Heritage Foundation’s influential political arm called on McConnell to cut off all confirmations and made the vote to confirm Wilhelmina Wright to the U.S. District of Minnesota a “key vote” for scorecard purposes. As a result, the Republican-controlled Senate only narrowly approved her, 58-36.
Since winning control of the Senate, Republicans have confirmed only 13 of Obama’s lower-court candidates. There are 45 district and circuit court nominees, most of whom have the backing of at least one home-state GOP senator, awaiting either floor votes or Senate Judiciary Committee action.
Liberal groups are targeting vulnerable Republicans, including Sens. Mark Kirk of Illinois, Kelly Ayotte of New Hampshire, Wisconsin’s Ron Johnson, Ohio’s Rob Portman and Pat Toomey of Pennsylvania, hoping that their fears of being labeled “obstructionists” will either prod them to force votes or cost them their seats in November, or both.
Kyle Barry of Alliance for Justice, a liberal judicial advocacy group, said McConnell and GOP leaders will have to decide whether to heed the calls of groups like Heritage or give vulnerable members some bipartisan bona fides to brag about on the campaign trail.
“The Republican leadership is going to have an interesting choice: shut it down to serve their overarching agenda” of limiting Obama’s power, weighed against “the needs of the members of their caucus” to get re-elected and have functioning federal courts back home, he said.
