The fate of President Obama’s judicial nominees is in the hands of a handful of Republican senators, experts on both sides of the confirmation wars agree.
Blocking the opposing party’s candidates to the federal judiciary is now a decades-old tactic on Capitol Hill. An entire cottage industry of neutral observers and advocates and detractors probe every potential nominee, track every procedural vote and analyze every statistic to measure how a president is faring on that front.
And both parties now regularly invoke, if not regularly try to redefine, the so-called “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.
The influential political arm of the conservative Heritage Foundation and others have already called on Senate Majority Leader Mitch McConnell to invoke it. However, he is following through with a commitment made at the end of last year to bring five nominees easily approved by the Senate Judiciary Committee to the Senate floor before the President’s Day recess.
How many more of the 28 nominees awaiting either confirmation or committee action make it to the circuit or district bench is largely up to the home-state Republican lawmakers who back them and the few vulnerable GOP senators seeking re-election in swing states, said Glenn Sugameli, who runs a nonpartisan judicial nominations project called Judging the Environment.
Senators such as Mark Kirk of Illinois, Kelly Ayotte of New Hampshire, Wisconsin’s Ron Johnson, Ohio’s Rob Portman and Pat Toomey of Pennsylvania fear being labeled “obstructionists” if they vote against district court nominees who earned unanimous approval from the judiciary panel and enjoy the backing of one or two home-state GOP senators, he said.
“The history of Democratic confirmation of Republican judicial nominees in recent presidential election years, the lack of any announced opposition on the merits to any of the nominees awaiting floor votes … and the strong home-state GOP senator support for many of the nominees awaiting floor and committee votes” all lead Sugameli to believe that the Senate will confirm more than the remaining three McConnell has promised floor votes.
Recently the Senate signed off on the first two: Luis Felipe Restrepo, Third Circuit Court of Appeals; and Wilhelmina Wright, U.S. District of Minnesota, making them only the 12th and 13th federal circuit or district judges approved this Congress. Toomey strongly backed Restrepo but Wright, who the Judiciary Committee approved by voice vote, encountered trouble on the floor. Heritage Action opposed Wright’s confirmation and deemed it a “key vote” for scorecard purposes, making conservatives reluctant to defy them. She was approved 58-36.
Of the vulnerable Republicans facing re-election, only Ayotte and Kirk backed Wright, who is now Minnesota’s first black female federal judge.
Sugameli said Wright’s circumstances were a “perfect storm” and not indicative of how other pending nominees, especially the 16 who have the support of at least one Republican senator, will fare.
Besides McConnell and Senate Judiciary Chairman Chuck Grassley, R-Iowa, Toomey could hold the most sway over which and how many more get through.
Beyond actively pushing for Restrepo, Toomey endorsed four more would-be federal judges awaiting confirmation to district courts in Pennsylvania.
Speaking on the Senate floor Jan. 11, Toomey said filling the Keystone State’s judicial vacancies has been a priority of his since he came to the Senate in 2011.
“Because we have worked closely together, not only have we filled these vacancies, but we have filled courthouses — federal courthouses meant to house federal judges — that have been vacant for years,” he said, speaking about the progress he and Sen. Robert Casey Jr., D-Pa., have made on that front.
“I hope we are close to filling an empty courthouse in Erie, Pa.,” he added.
Although he voted against Wright, Johnson has signed off on some of Obama’s Wisconsin federal court nominees and said he’s open to Donald Schott, whom Obama just named to the 7th Circuit Court of Appeals.
“Senators who come back home and tout themselves as being conservative are going to have a very hard time explaining why somebody that Barack Obama nominated is worthy of a lifetime appointment … and have confidence that these people will interpret the Constitution in a conservative manner,” Heritage Action’s Dan Holler warned Republicans.
Thomas Fitton, president of the conservative watchdog organization Judicial Watch, said he doesn’t see the Thurmond rule being followed soon.
“I would expect there will be several additional confirmations as Republicans refuse to use the tools available to them to rein in a president whose contempt for the rule of law makes him unfit to select federal judges,” Fitton said.
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.
