President Barack Obama’s re-election last week has exposed an internal rift among Republican senators over whether to clear the way for confirmation votes on long-stalled judicial nominations during the lame-duck session or delay them until the next Congress.
Utah Sen. Orrin G. Hatch, a prominent Republican on the Judiciary Committee, predicted Wednesday that none of Obama’s 19 judicial nominees awaiting Senate floor action will be confirmed before year’s end. If they are not confirmed, the president must renominate them next year.
“That’s not going to happen in the lame-duck,” Hatch said in an interview. “That will have to wait until next year.”
Hatch’s position, however, is not shared by all his Republican colleagues. The list of stalled nominees includes several who have the strong backing of their home-state Republican senators. Sens. Susan Collins of Maine and James M. Inhofe of Oklahoma, for example, are pressing for confirmation votes in the post-election session.
Republican leaders have blocked all judicial confirmations since September, citing a loose Senate custom of not approving a president’s judicial nominees in what could be the final months of an administration.
“Now that the elections are behind us, I write to urge you to move forward expeditiously to schedule votes on non-controversial judicial nominees who have bipartisan support,” Collins wrote a letter sent Tuesday to Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky. Most of the stalled nominees, including 15 appointees to federal trial courts and four to appeals courts, received bipartisan backing from the Judiciary Committee.
Collins singled out for swift confirmation William J. Kayatta Jr., a nominee for the 1st U.S. Circuit Court of Appeals whose confirmation is also supported by Maine’s other Republican senator, Olympia J. Snowe.
“The 1st Circuit bench is small — it only has six active judges— so any single vacancy hits it disproportionately hard. It now has the highest vacancy rate of any circuit in the country,” Collins said. “Bill has a stellar record, the highest [American Bar Association] rating, the full support of Maine’s Republican Senate delegation, and was reported by the Judiciary Committee by a bipartisan voice vote. There should be no reason to delay a Senate vote on his nomination any further.”
Inhofe is also pushing for lame-duck confirmation of two stalled nominees from Oklahoma: Robert E. Bacharach for the 10th U.S. Circuit Court of Appeals and John E. Dowdell for the U.S. District Court for the Northern District of Oklahoma, an aide said. Oklahoma’s other Republican senator, Tom Coburn, also supports their confirmation and said in a Nov. 7 interview with The Oklahoman that Obama’s re-election means the two nominees will “fly through” the Senate.
Some Republican aides are downplaying the likelihood of that outcome, however. A senior GOP Senate aide said this week that lame-duck judicial confirmations are rare during presidential election years. President George W. Bush’s re-election 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 said.
Republicans have also seized on a floor remark made by Reid in July, when he filed for cloture in an unsuccessful attempt to confirm Bacharach.
“This will be our last circuit court judge,” Reid said at the time.
Republican aides say Reid’s statement commits him to not holding confirmation votes on Bacharach, Kayatta and other appeals court nominees until next year. Democratic aides, however, say Reid was referring to confirmation votes on appeals court nominees before last week’s elections, not to the end of the calendar year.
Republicans have sent their own mixed messages. Tennessee Sen. Lamar Alexander, for example, said on the floor in July that some circuit court nominees could receive votes after the elections, even though other Republicans now appear to be backing away from that position.
“If there are excellent nominees by the president to the circuit courts, well, the election is only four months away,” Alexander said. “If he is re-elected, they can be confirmed in November and December.”
Obama signaled Wednesday he may place a greater emphasis on judicial nominations in his second term than he did in his first, nominating seven new candidates to district court judgeships and one to a special trade court, even though those nominees are highly unlikely to be confirmed in the current Congress.
Humberto Sanchez contributed to this report.