With the Senate GOP vowing to halt some judge confirmations until after the elections, Senate Democratic leaders see an opportunity to put Republicans in a tough spot by continuing to bring up circuit court nominees, possibly ones who have already received the support of GOP Senators.
Depending on how Republicans react, Democrats say they can paint the minority as obstructionist or shame them into confirming additional nominations.
Democrats may seek to test the issue by holding votes on two circuit court nominees who already have the backing of home-state Republican Senators.
Minority Leader Mitch McConnell (Ky.) “can say whatever he wants behind closed doors, but it will be interesting to see how [GOP Senators] react in public” if they are forced to vote against judges, a Senate Democratic aide said.
One is William Kayatta Jr., who has been nominated for a seat on the 1st U.S. Circuit Court of Appeals. Kayatta is a nationally recognized Maine trial lawyer who also maintains an active appellate practice. The Senate Judiciary Committee approved his nomination in the spring.
With Kayatta in mind, Maine GOP Sens. Olympia Snowe and Susan Collins told the Forecaster newspaper in Falmouth, Maine, on Friday that they won’t abide by McConnell’s edict on circuit court judges.
“It simply isn’t fair that Bill, who would be a superb judge, now appears to be caught up in election-year politics,” Collins told the paper. “I have urged my colleagues on both sides of the aisle to give Bill the direct vote by the full Senate that he deserves.”
Another potential pressure point may be the nomination of Robert Bacharach for the 10th U.S. Circuit Court of Appeals. Bacharach is a magistrate judge of the U.S. District Court for the Western District of Oklahoma. He has the backing of Oklahoma Republican Sens. Tom Coburn and James Inhofe.
The Judiciary Committee cleared his nomination last week, but Coburn on Monday said having a vote before the elections “doesn’t look good.”
Judiciary Chairman Patrick Leahy (D-Vt.) on the floor Monday sought to pressure Republicans on Kayatta and Bacharach, as well as other nominees who have some GOP support.
“I was heartened to see that the senior Senator from Maine has said that she will continue to work with the bipartisan Senate leadership in an effort to bring ... the Maine nominee to the First Circuit before the Senate for a confirmation vote,” Leahy said. “I trust that the many Republican Senators who joined Sen. [Jon] Kyl and Sen. [John] McCain in opposing the filibuster of Justice [Andrew] Hurwitz [last week] will now join to oppose the filibusters of William Kayatta of Maine, Judge Robert Bacharach of Oklahoma, Judge [Patty] Shwartz of New Jersey and Richard Taranto for the Federal Circuit. I would hope that the Senators from South Carolina, whose state’s nominee we consider today, will aid this effort just as we have worked with them throughout the process to ensure that they were consulted by the president and that they consented to proceeding with this nominee from their home state.”
But Republicans argue they are simply following the historical precedent set by Democrats and Leahy, who in 2004 and 2008 cut off circuit court nominees in June but continued confirming district court nominees into the fall.
“We think it’s early” to invoke the “Thurmond Rule,” named after the late Sen. Strom Thurmond (R-S.C.), a Senate Democratic leadership aide said.
Democrats are deciding whether to continue to work on judicial nominations one at a time or to pursue a new deal that would ensure confirmation for a raft of nominees. No decisions have been made on how to proceed, and it’s unclear what incentive Senate Republicans would have to agree to such a deal.
In March, Democrats and Republicans agreed to vote on 12 district and two circuit court judges by May 7. The judicial compact also included a deal to take up a House-passed bill that would help small businesses raise capital.
The agreement came together after Majority Leader Harry Reid (Nev.) and other Democrats complained that Republicans were slow-walking judicial nominations. Reid brought the issue to a head when he filed cloture on 17 judicial nominations — a move that could have tied up the Senate for weeks.
“We filed cloture on a package of 17 judges and the effect was to make folks squeamish about having to have a cloture vote at all,” the Democratic aide said. “The opposition was soft.”
“We are just following Chairman Leahy’s example,” a GOP aide said. “After all, he is the one who stopped confirming circuit court judges in June in the past two presidential cycles.”
The GOP aide added that Democrats should put their efforts to better use, such as “giving us a call on [legislation related to] student loans.” The parties have been in a stalemate on how to avoid a doubling of student loan interest rates, in particular over how to offset the nearly $6 billion cost of the measure.
Another Democratic aide disputed the GOP characterization on nominations.
The aide said that for the past two years, Senate Republicans have broken with long-standing tradition and refused to vote on consensus nominees who were voted out of the Judiciary Committee at the end of the year. Of the five circuit court nominees confirmed this year, three of them could and should have been confirmed last year, they argue. The aide added that Senate tradition has been that in presidential election years, nominees receive a vote unless they do not have bipartisan support.
John Stanton contributed to this report.