Carl Tobias

Professor Carl Tobias Responds to Senator Orrin Hatch on Judicial Nominations

By CARL TOBIAS
Friday, December 4, 2009

Senator Orrin Hatch recently criticized my suggestion that Senate Republicans are preventing President Barack Obama from appointing federal judges and urged me "and other apologists [to get our] facts straight, tell the whole story, and realize that our nation's leaders are responsible for their choices and priorities." We actually agree on more than his critique suggests. However, with all due respect to the senator, who has long served with distinction on the Senate Judiciary Committee, I disagree with several of his ideas.

The Whole Story

Unfortunately, Senator Hatch seemed to discount his lengthy experience with the confirmation process and recounted an abridged story. The senator repeats the assertion made by numerous mainstream media reporters that Obama has nominated too slowly, tapping half the number whom President George W. Bush had at the same juncture of his administration. However, the White House is not the source of delay. Obama has steadily nominated sufficient well qualified nominees for the committee to efficiently process, and there is little reason to nominate more candidates than the Senate can effectively review. Obama's approach strikingly contrasts with those of Bush and President Bill Clinton, who often submitted large nominee packages as the Senate recessed, thus complicating smooth processing.

The Judiciary Committee, under the chairmanship of Senator Patrick Leahy (D-Vt.), has promptly assessed, conducted hearings for, and voted on, nominees. However, the tendency of Senator Jeff Sessions (R-Ala.), the ranking member, to place automatic holds on nominees, most of whom the panel then unanimously approved, has caused some delay.

The major confirmation bottleneck has been the Senate floor. As Senator Hatch knows, Justice Sonia Sotomayor's nomination and confirmation processes consumed three months during which time little other judicial selection activity occurred. Over this period, Senator Mitch McConnell (R-Ky.), the Minority Leader, insisted that lower court nominees not receive floor consideration. Thus, the Senate evaluated no Obama nominee until September because Justice Sotomayor was confirmed as the Senate recessed in August. Senator McConnell has also not cooperated as much as possible with the majority by entering into time agreements on floor debates and votes.

Delay as well has occurred on the Senate floor due to the GOP practice of placing anonymous holds on uncontroversial nominees. Republicans have concomitantly asked for much time to debate nominees on the floor but then used little of that time. A trenchant example is Judge Roberto Lange for whom the GOP requested two hours of floor debate but took five minutes after which the Senate confirmed him 100-0.

Areas of Agreement

There are numerous judicial selection issues on which Senator Hatch and I apparently agree. To Senator Hatch's credit, he has consistently voted in favor of cloture and against filibuster of judicial nominees, even when Senator Sessions recently attempted to orchestrate a filibuster of Judge David Hamilton. Senator Hatch and I agree that every nominee deserves an up or down vote, which the senator exhibited when he favored cloture but voted against Hamilton. Based on Hatch's record, I assume that the senator and I agree on the need to expeditiously confirm well qualified nominees for the 97 present appellate and district court vacancies, so that the judiciary may promptly, inexpensively and fairly resolve cases. I also assume we agree that the "confirmation wars" should end and that Democrats and Republicans share much responsibility for the accusations and recriminations, partisan disputes and incessant paybacks that have long plagued selection.

What Should Happen

Senator Hatch should help mend the broken selection process. Many senators - Hatch, Vice President Joe Biden, Arlen Specter (D-Pa.) and others - have assiduously labored to facilitate confirmations, especially when the opposing political party controlled the White House, and even in the face of opposition from their own parties. One illustration was Biden's cooperation, as Judiciary chair and Delaware senator, in passing the last comprehensive judgeships act in 1990, which created many new seats for President George H. W. Bush to fill. Another was Hatch's consultation, as chair, with Clinton that prompted smooth confirmation of Justices Ruth Bader Ginsburg and Stephen Breyer.

Senator Hatch, thus, has been a great model for facilitating the appointment of Democratic judicial nominees. For example, Senator Sessions ought to stop or limit reliance on filibusters and the routine use of holds in committee. Senator McConnell should also cooperate more with Democrats in scheduling floor debates and votes. Moreover, Hatch's GOP colleagues ought to halt or reduce dependence on anonymous holds, particularly for consensus nominees. Republicans as well should reach across the aisle and attempt to work with Democrats on facilitating confirmations, as Hatch has throughout his career.

Postscript

I look forward to Senator Hatch's continuing his leadership in ensuring fair, expeditious floor consideration of President Obama's nominees. A concerted effort by Hatch to fill the nearly 100 vacancies would yield significant benefits for the Senate, the courts and the nation by facilitating swift, economical and fair case disposition.


Carl Tobias is the Williams Professor at the University of Richmond.

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