The battle over judicial nominations in the Senate could reignite as soon as next week as Democrats look to fill what they argue are pressing vacancies.
The flashpoint could come when the Senate revisits the nomination of Caitlin Halligan of New York to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit. A senior Senate Democratic aide said the chamber could take up Halligan next week.
The D.C. Circuit is considered the second-highest court in the land because of the important decisions heard by its judges.
“We think she’s an activist, we think she’s got gun problems,” Judiciary ranking member Charles E. Grassley, R-Iowa, said Monday, referencing her position on Second Amendment issues.
Senate Republicans successfully filibustered Halligan’s nomination in December 2011. Republicans said she had an activist record and questioned the need to fill the spot.
“I would hope that the same thing happens, but I can’t predict” for sure until there is a whip count, Grassley said.
All but one Judiciary Committee Republican — Sen. Lindsey Graham, R-S.C., who changed his vote to “pass” from “no” — registered their opposition to Halligan on Feb. 14, when the panel approved her nomination.
“I am anticipating a 60-vote threshold,” said a GOP senator with knowledge of strategy on judicial nominations.
Republicans had argued that the caseload for the court had not warranted filling the opening, but that argument “has evaporated,” the senator said.
Nevertheless, the senator said the GOP conference would likely remain opposed because of Halligan’s alleged weak record on gun issues. Republicans contend that she has argued in favor of liability for manufacturers.
“Now that we’ve blocked her once, I suspect that the conference is going to be reluctant to back away from that,” the senator said.
Proponents of Halligan’s nomination point to her “well-qualified” rating from the American Bar Association, its highest accolade.
Sen. Charles E. Schumer, D-N.Y., who has been one of Halligan’s most vocal supporters, said her record makes her more than worthy of confirmation.
“Caitlin Halligan is a nominee that any President of any party would be proud of. She has earned the honor of this nomination through dint of hard work and native intelligence. She has dedicated almost her entire life to government service,” Schumer said in an email from his office.
Since President Barack Obama won re- election in 2012, Democrats have been looking to clear the backlog of judges, which they contend is the result of Republicans’ obstruction. Judicial vacancies currently stand at 89, and the vacancies have been close to or above 80 for more than three years.
“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.
“More than 60 percent of the current vacancies don’t have nominees,” the Grassley spokeswoman said. “So to blame the Republicans for the number of vacancies is pretty disingenuous.”
This version corrects the Senate Judiciary Committee vote on Halligan.