It took a little finesse, but a Senate deal to confirm five of President Barack Obama's judicial nominees held this week, despite pressure from a key conservative interest group to shut down the process entirely.
"Did you wait for me?" Sen. Lisa Murkowski, R-Alaska, asked floor staffers as she entered the chamber. "Is it a tight vote?" The Republican-controlled chamber eventually did confirm Judge Wilhelmina Wright to be a U.S. district judge in Minnesota Tuesday, but the 58-36 vote belied tension on the floor as "no" votes piled up from GOP leaders and the rank and file, amid Heritage Action for America's announcement it would hold senators accountable if they voted for her.
Last week, Heritage Action called for the Senate to "stop confirming any of Obama's non-security nominees" and singled out Wright specifically as a nominee who "should be rejected." The group followed up on Tuesday, announcing that the vote on her nomination would be a key vote on its legislative scorecard.
"If Senate Republicans band together and block this nomination, it will be a strong first step on a long path towards the Congress reasserting their constitutional prerogatives and defending the rule of law," the statement from Heritage Action said.
Last year, before leaving for its holiday break, the Senate struck a deal to vote before the Presidents Day recess on five nominees to the bench: Luis Felipe Restrepo to the 3rd Circuit Court; Wright to the District of Minnesota; John Vazquez to the District of New Jersey; Rebecca Ebinger to the Southern District of Iowa, and Leonard Strand to the Northern District of Iowa.
On Jan. 11, the chamber confirmed Restrepo 82-6. That was followed by Heritage Action missive for the Senate to stop confirming judicial nominees. Wright's vote total, down several dozen from Restrepo's, suggests that the pressure may be on.
All told, 14 Republicans voted for Wright, and 36 were opposed. Five Republicans — Sens. Ted Cruz and John Cornyn of Texas, Marco Rubio of Florida, and Lindsey Graham and Tim Scott of South Carolina — missed the vote. Among the Democratic conference, 45 voted for Wright. Independent Bernard Sanders of Vermont, who caucuses with Democrats, missed the vote.
The judicial nomination process always becomes tense in the final year of a presidency, particularly as the opposition party looks to slow down the flow of lifetime appointments to the bench.
The Senate confirmed 11 judicial nominees last year, prompting Democrats and court administrators to cry foul that Republicans were slow-walking the process in the face of a crisis on staffing the federal bench.
"An increasing number of federal judicial vacancies throughout the federal court system is straining the capacity of the federal courts to administer justice in an adequate and timely manner," the Federal Bar Association states on its website, adding, "The judicial vacancies problem has reached crisis point."
According to the Administrative Office of the U.S. Courts, there are 78 vacancies for the federal bench, with 36 nominees pending.
Senate Judiciary Chairman Charles E. Grassley, R-Iowa, has pushed back against calls to fill those vacancies with haste. On the day Restrepo was confirmed, Grassley said on the floor, "There is no judicial vacancy crisis."
Wright's nomination had a bit of baggage, with conservatives citing her criticizing President Ronald Reagan in a law review article she contributed to in 1989 when she was a student at Harvard Law School. At her September confirmation hearing before Grassley's panel, she said her comments were "inartful."
On Tuesday evening, the vote stalled at 39 "yeses" as senators straggled in. Sen. Amy Klobuchar, D-Minn., who had spoken to a nearly empty chamber in support of Wright that afternoon, started circulating around the GOP side of the aisle.
Some Republicans in tough 2016 races, such as Patrick J. Toomey of Pennsylvania and Mark S. Kirk of Illinois, eyed the tally on the voting card and held off on voting.
Toomey, who pushed for Restrepo's confirmation as important to his state, voted "no." Kirk voted "yes." Two other vulnerable Republicans, Ron Johnson of Wisconsin and Rob Portman of Ohio, voted "no." Murkowski, up for re-election this year but not in any great danger, voted "no."
Klobuchar started to look worried.
She huddled with Majority Leader Mitch McConnell, R-Ky., who nodded, got the attention of the clerk, and changed his vote from "no" to "yes." More Republican "yes" votes streamed in. Grassley and his home-state colleague, Joni Ernst, raised their hands high to signal "yes." Of the three remaining judges left to vote on as part of the deal, two of them would serve in the Hawkeye State.
Sen. Dan Coats, R-Ind., voted for Wright. On Wednesday, he said he wasn't sure why the nomination didn't garner more votes. He added presidents should be given discretion on district court nominees as long as they have been properly vetted and are qualified, and dismissed the kerfuffle over Reagan.
"The one thing she said [was as] a third-year law [student] 25 years ago, and she retracted. And I started thinking, 'You know, I probably said something 25 years ago that I wouldn't exactly like.' But that should not be a disqualifier," he said.
Coats, who is retiring after this year's elections, is one of the few senators to subject himself to a Senate confirmation vote when he became U.S. ambassador to Germany from 2001-05. Another Republican who had been through the confirmation process, Lamar Alexander of Tennessee, a former Education secretary, also voted "yes."
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