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Senator Orrin Hatch Responds to Professor Carl Tobias on Judicial Nominations
Orrin Hatch

Senator Orrin Hatch Responds to Professor Carl Tobias on Judicial Nominations

By Sen. Orrin Hatch
Monday, November 16, 2009

Professor Carl Tobias recently argued that Senate Republicans are keeping President Obama from appointing federal judges. He is wrong on both his facts and his conclusions.

As a reminder, the Democratic majority is 60-40 in the Senate and 12-7 on the Judiciary Committee. This is their largest majority in more than 30 years. It is time for Democrats and their defenders to stop making excuses and trying to blame everyone else. Those who want to achieve power, and who have been given power by the American people, should take responsibility for their own political actions.

Professor Tobias claimed that Senate Majority Leader Harry Reid "took the unusual step of invoking cloture to secure a floor vote on Southern District of West Virginia Judge Irene Berger. She is the third uncontroversial judicial nominee on whom Reid has been forced to seek cloture." In fact, Senator Reid did not file cloture on Judge Berger's nomination, or on any previous judicial nomination. It simply did not happen. Though his claim is false, Professor Tobias is not the only one to repeat it.

Judge Berger was nominated on July 8 and confirmed less than four months later, a very ordinary pace even without considering that the Senate was out of session for the month of August. The average time from nomination to confirmation for President Obama's district court nominees has been nearly 15 percent faster than the average time for President Bush's nominees during the 107th Congress.

Speaking of the August recess, if Republicans had really wanted to obstruct the confirmation process, we might have followed the Democrats' playbook from 2001. Under Senate rules, pending nominations expire and are returned to the President whenever the Senate recesses or adjourns for more than 30 days. In the past, the Senate routinely waived this rule to carry pending nominees over the August recess. On August 3, 2001, however, Democrats objected to this traditional practice so that 45 judicial nominees were sent back to President Bush and had to be re-nominated. Some had been sent to the Senate only one day earlier and the group included nominees to not only life-tenured federal judgeships but also to term-limited courts such as the Court of Federal Claims and the District of Columbia Superior Court.

Professor Tobias is part of the liberal chorus criticizing Republicans for ensuring that the Senate actually votes on judicial nominees. Many Americans probably think that voting is one of the things that Senators are elected to do. But the practice of demanding roll call votes on uncontroversial nominees was already established, and not by Republicans. The percentage of district court nominees confirmed by roll call vote during the Bush administration was 25 times higher than during the previous 50 years. You read that right, 25 times higher. And the percentage of roll call votes without any opposition also skyrocketed during the Bush administration. Democrats apparently saw no problem with this practice when they changed the confirmation ground rules.

That batch of nominees that Democrats forced back to President Bush at the beginning of the August 2001 recess included nearly two dozen district court nominees who would eventually be confirmed without a single negative vote. If simply asking for a vote on unopposed district court nominees is now considered obstruction, what would Professor Tobias consider dissolving their nominations altogether?

Professor Tobias made another baffling statement: "The fact that Obama has nominated only 23 persons thus far to fill federal judgeships is not attributable to the White House or the Senate majority." To whom can judicial nominations be attributed if not to the President? Professor Tobias' excuse is that, well, President Obama has other things on his plate. True, but every President should be able at least to multi-task. At this point in his first year, President Bush had sent 50 judicial nominees to the Senate, twice as many as President Obama has, even though he was dealing with an economic recession, the aftermath of the terrorist attacks of September 11, 2001, and a Senate led by the opposition political party.

Professor Tobias and other apologists should get their facts straight, tell the whole story, and realize that our nation's leaders are responsible for their choices and priorities.


Senator Orrin G. Hatch (R-UT) is a longtime member and former Chairman of the Senate Judiciary Committee.

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