Judiciary GOP Perfecting the Pass

Posted March 25, 2009 at 6:26pm

While voting “pass— on a Department of Justice appointment might seem like a benign maneuver — it’s not quite a yes or a no — Senate Republicans on the Judiciary Committee are using the option to make their mark on a handful of President Barack Obama’s nominees.

Led by ranking member Arlen Specter (Pa.), several Judiciary Republicans recently have opted to pass, rather than oppose, three of Obama’s more controversial Justice Department picks. The trio of appointees includes now-Solicitor General Elena Kagan, and newly installed Associate Attorney General Thomas Perrelli, as well as Deputy Attorney General nominee Dawn Johnsen.

The embrace of the pass appears to be vintage Specter, who has long charged that the fate of a president’s judicial nominees — regardless of his or her party — should be decided by the full Senate, not by a handful of Senators on the Judiciary panel. Specter led that fight on behalf of President George W. Bush’s stalled judicial nominees, having then argued that the appointees deserved up-or-down Senate votes.

Specter seems to be continuing the practice even though his party no longer controls the presidency.

Specter passed on voting against Kagan in committee, but he voted “no— on her nomination on the Senate floor. He passed on Johnsen’s nomination in committee as well, although her confirmation has yet to head to the Senate floor. Kagan cleared the Senate on a partisan 61-31 vote on March 19.

While far from becoming a new Judiciary Committee policy, some of Specter’s GOP colleagues are following suit.

“I believe we have to stick together,— said Sen. Lindsey Graham (R-S.C.), who also passed on Kagan when the committee voted.

Specter “felt [Kagan] wasn’t forthcoming with all the questions, so I was helping my ranking member there,— Graham added.

Sen. Orrin Hatch (R-Utah) also voted “pass— on Kagan’s nomination in committee “because I wanted to support the ranking member.— Hatch said a “pass— vote allows Republicans to avert the tag of an obstructionist, something Senate Republicans regularly accused Democrats of being during Bush’s tenure.

“I certainly don’t want to play the game they did. I don’t agree with everything [a nominee] believes, but if they’re qualified and competent then I’ll vote for them,— Hatch said.

Specter had criticized Kagan’s performance during her confirmation hearing but decided to hold off on opposing her nomination until it came to the Senate floor. At the time of that vote, Specter noted that Justice Department nominees need a solid scrubbing before the chamber decides their fate.

“I think it is pretty plain that Dean Kagan will be confirmed, but I do not articulate this as a protest vote or a protest position but really one of institutional prerogatives that we ought to know more about these nominees,— Specter said in a floor statement before the Senate vote. “We ought to take their confirmation process very seriously. … I think we have to pay a little more attention.—

In the case of Johnsen, Specter explained that “I have indicated that I pass’ — not saying aye’ or nay’ — because I want to talk to the nominee again.—

The ranking member made a similar appeal on Wednesday for the nomination of Indiana District Court Judge David Hamilton, tapped by Obama to fill a vacancy on the Seventh U.S. Circuit Court of Appeals. Specter asked Leahy in a letter to postpone Hamilton’s confirmation hearing, set for April 1, to give committee members more time to ask questions of the federal court pick.

“Senators should be afforded at least two weeks to evaluate executive nominees’ records prior to their hearings,— Specter said.

So far, the GOP “pass— votes have not stalled a single nomination in committee or in the full Senate, where Democrats have a comfortable 58-41 seat majority. Even the nominee considered the most likely to have a difficult confirmation process — Attorney General Eric Holder — easily advanced through the chamber, and with Specter’s support.

Sen. Chuck Grassley (R-Iowa) was the lone Judiciary Committee member to register a pass on Perrelli, and he voted against the nominee on the Senate floor. Perrelli enjoyed broader support on the floor than Kagan, securing a favorable 72-20 vote from the full chamber, winning over almost as many votes as Holder, who was approved 75-21.

“Every Senator has the right to vote the way they want,— Judiciary Chairman Patrick Leahy (D-Vt.) said. “We’ve had a lot of delays for the sake of delays. We have to keep moving, and if people don’t feel comfortable, they can vote no.’—

Sen. Jeff Sessions (R-Ala.) said the pace with which the Judiciary panel has considered nominees this Congress has prevented Members from having enough time to consider each appointee. So rather than choosing a side at the committee level, he said some Republicans are favoring registering a pass and voting “yes— or “no— when the nominee heads to the Senate floor.

“It’s a powerful thing. Some of these appointments are important, [and] you have to give these people a fair shake,— Sessions said.

So far, Sessions has avoided any “pass— votes, but he said he’s been “close— and empathizes with his Republican colleagues.

“Once you vote no’ in committee, it’s hard to vote yes’ on the floor,— he said.