Senate Democrats could be on a collision course with Senate Republicans when it comes to using the lame-duck session to confirm 19 judicial nominations that have been held up this Congress.
“Our expectations are that we should not have a lot, if any, on the docket after the lame-duck session,” a Senate Democratic aide said Monday. “In every lame duck, judges that had bipartisan support were confirmed,” the aide continued.
But Senate Republicans expect only a few to be confirmed, if that.
Senate action on “judicial nominees in a lame-duck session of a presidential election year are very rare,” a senior GOP Senate aide said. The re-election of President George W. Bush in 2004 “is the only time in recent memory that it happened, and even then, only a few district court nominees were processed,” the aide added.
According to Republicans, no circuit court nominees have been processed in a lame duck of a presidential election year since the administration of President Jimmy Carter, and then it was only one.
Republicans also note that Senate Majority Leader Harry Reid, D-Nev., said during debate on the nomination of Robert E. Bacharach of Oklahoma to be a judge for the 10th U.S. Circuit Court of Appeals that his would be the last effort to pass a circuit court judge for the year. Republicans said they hope Reid doesn’t go back on his stated position.
Also, Republicans cite statistics showing the Senate has already confirmed 77 percent of President Barack Obama’s judges, while it confirmed 74 percent for Bush in the first term and 61 percent in the second. Senate Minority Leader Mitch McConnell, R-Ky., used those numbers in a floor speech in late July.
Of the 19 judicial nominations awaiting floor action, there are four circuit court nominees and 15 district court nominees. Democrats contend that 17 were approved by the Judiciary Committee on a voice vote or with Republican support.
The Senate must also decide on a raft of other nonjudicial nominations that are pending, including Martin J. Gruenberg to head the Federal Deposit Insurance Corporation. Any pending nominations not acted on before the end of the year must be resubmitted for consideration by the next Congress. No decisions have been made on how to handle those nominations, a Senate GOP aide said.
Carl Tobias, a constitutional law scholar at the University of Richmond, said he thinks the Senate could clear most of the 19 judicial nominations given that the elections are over and they are noncontroversial.
“What is the reason to not go ahead and give the courts the resources they need to decide the cases?” Tobias said. “What would they be stalling for now? 2014? 2016?”
There are two circuit court judges and two district court judges who are prime candidates to see action and who have received vigorous support from Republicans.
Oklahoma Republican Sens. James M. Inhofe and Tom Coburn have been urging a vote on Bacharach, whose nomination was filibustered in late July by Republicans citing a long-standing practice in which the minority blocks judicial nominations in the final six months of a presidential election cycle.
Bacharach’s confirmation was filibustered, 56-34. Sixty votes are needed to overcome a filibuster and cut off debate.
Similarly, Maine Republican Sens. Olympia J. Snowe and Susan Collins have been pushing for a vote on William Kayatta Jr. for the 1st U.S. Circuit Court of Appeals, which is why they defied their leadership and joined Democrats in voting to move forward with Bacharach.
Sen. Patrick J. Toomey, R-Pa., has been agitating for confirmation of Matthew W. Brann and Malachy E. Mannion, who were nominated by Obama to be a judges for the U.S. District Court of the Middle District of Pennsylvania in May.
He wrote a letter to Reid and McConnell in September calling for a vote on their nominations in the lame duck.