Grassley, ranking member of the Senate Judiciary Committee, said he hopes Republicans can again filibuster Halligan’s nomination, a nominee to the second-highest court in the land, who they believe has an activist record.
“The record is clear: Senate Republicans have engaged in an unprecedented effort to obstruct President Obama’s judicial nominations,” Judiciary Chairman Patrick J. Leahy said before the Senate confirmed Robert E. Bacharach of Oklahoma to fill a spot on the 10th Circuit on Monday night.
“This obstruction has contributed to the damagingly high level of judicial vacancies that has persisted for over four years,” the Vermont Democrat continued. “Persistent vacancies force fewer judges to take on growing caseloads and make it harder for Americans to have access to speedy justice.”
Referencing the number of vacancies, Leahy said it “is more than double the number of vacancies that existed at this point in the Bush administration. The circuit and district judges that we have been able to confirm over the last four years fall more than 30 short of the total for President [George W.] Bush’s first term.”
So far, it is unclear whether the filibuster rules changes that the Senate adopted last month will help the chamber clear more district court judges. Those changes reduced post-cloture debate on district court nominees from 30 hours to two hours. Nominees such as Halligan, however, would not be affected because the rules were not changed for circuit court or Supreme Court nominees.
Eleven nominations were left unresolved at the end of the last Congress, a backlog that will likely not be cleared until halfway through this year.
Despite support from Oklahoma’s GOP senators, Bacharach’s nomination was initially filibustered in July after Senate Minority Leader Mitch McConnell, R-Ky., called for a blockade of circuit judges. McConnell cited the “Thurmond rule,” which holds that within six months of a presidential election, the opposition party can, and typically does, refuse to allow votes on circuit court judges. The rule was named after the late Sen. Strom Thurmond, R-S.C., but it has been called the “Leahy rule” by some Republicans, who say the chairman has been a frequent user of the unofficial rule.
“Judge Bacharach is the first circuit court nominee to be filibustered who had received bipartisan support before the Judiciary Committee,” Leahy said.
Before recess, the Senate confirmed William J. Kayatta Jr., who was nominated for a seat on the 1st U.S. Circuit Court of Appeals. Action is also expected on the nomination of Richard G. Taranto to the U.S. Court of Appeals for the Federal Circuit.
Republicans disagreed with Leahy’s complaints of obstruction, arguing that Obama’s nominees have been fairly treated.
Grassley “will move nominees forward in a fair manner consistent with the last two years,” his spokeswoman said.
Republicans contend that during the 112th Congress, the Senate confirmed more district judges than were confirmed in any of the previous eight Congresses, including 111 district judges confirmed during the 112th. That is the most confirmations since the 103rd Congress, from 1993 to 1994, when 128 were confirmed.
“Judges are being confirmed in a nearly identical amount of time as under the previous administration,” Grassley’s spokeswoman said.
In his first term, the Senate confirmed 173 of Obama’s 218 Article III judicial nominees, a 79.4 percent confirmation rate. Bush got only 74 percent of his nominees approved during his first term, according to Judiciary Committee Republicans.
Republicans note that the White House has not nominated judges to fill some vacant spots.