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Individual Republicans during the past year have vowed to block one or more of Obama’s judicial nominees for a variety of reasons. Sen. David Vitter (R-La.) earlier this month cited the looming presidential election for his decision to filibuster a district court judge from Baton Rouge.
Saying he has “bent over backwards to cooperate” with Obama on nominations, Vitter told the Advocate newspaper, “Now that it’s a few months before a presidential election, however, I’m going to let the people speak before supporting any others.”
But the decision by leadership to formally invoke the Thurmond Rule raises the stakes significantly because an individual Senator’s filibuster can be overcome — so long as enough Republicans are willing to vote with Democrats. With McConnell now backing use of the Thurmond Rule, that appears unlikely to happen.
Leahy acknowledged the reality of the situation: “It’s an election year, and I understand that.”
Still, he said he was concerned that Republicans were invoking it this early in the cycle. “I would just remind them that in President Bush’s first and second terms, we went late in the year confirming judges” before Democrats called an end to bipartisanship on judicial nominations, Leahy said.
Indeed, Democrats said that between June and November 2004, the Senate confirmed 25 of Bush’s nominees, while during that same period in 2008 the Senate confirmed 22 judicial nominations. Democrats also point to the fact that there are currently 75 judicial vacancies that need to be filled, which is significantly higher than in either 2004 or 2008.
Recently, judicial nominations had been one of the few bright spots in the increasingly divided, bitter chamber.
Senate Democratic Conference Vice Chairman Charles Schumer (N.Y.) as late as last week noted the bipartisanship of the judicial confirmation process.
“All around this chamber, there are green shoots of bipartisan activity. In the last two months alone, we have overhauled the postal system, approved a multiyear transportation program, renewed the Violence Against Women Act, streamlined drug approval rules at the FDA, renewed the Export-Import Bank and passed a bill to help business startups. We have confirmed 20 judges and put the Federal Reserve Board at full strength for the first time in six years,” Schumer noted in a June 7 floor speech.
But Republicans counter that they are on the same pace of confirming circuit judges as Democrats were under Bush, noting that in 2004, the Senate confirmed five circuit court nominees, and in 2008, the chamber confirmed four, with the last confirmation coming in June in both years. Thus far this year, the Senate has confirmed five of Obama’s nominees, including the confirmation of Andrew Hurwitz to the 9th Circuit Court of Appeals on Tuesday.
Hurwitz’s road to confirmation, however, may have foreshadowed the coming blockade, considering GOP backers, such as Minority Whip Jon Kyl (Ariz.), were barely able to muster the eight Republican votes needed to help Democrats overcome a filibuster. And with the Thurmond rule being invoked, Hurwitz may be the last circuit judge to see confirmation this year.
Republicans point to the bipartisan nature of the Thurmond Rule, which was invoked by Senate Majority Leader Harry Reid (D-Nev.) during the 2008 election.