Shortly after courageous Senators, fed up with obstruction, changed Senate rules to allow a simple majority to end a filibuster, AFJ President Nan Aron wrote this in The Huffington Post:
Clearly, going forward, the Republicans will be in no mood to be cooperative and will almost certainly use every tactic they can think of to throw a wrench into the process.
The change in rules already has benefitted the American people. Two highly-qualified judges have been named to the U.S. Court of Appeals for the D.C. Circuit, and a host of well-qualified executive branch nominees have been confirmed.
But Nan Aron’s prediction has proven accurate.
With the filibuster unavailable to thwart judicial nominees on the Senate floor, Senate Republicans have doubled down, turning to the Senate Judiciary Committee—and arcane procedural rules—to continue their partisan obstruction. Rather than acting in the nation’s best interest, or at least evincing a modicum of concern over the record-high number of judicial vacancies that plague our federal justice system, the Senate Republicans are trying to grind the confirmation process to a halt. For purely partisan reasons—which is to say, for spite, and nothing more—Senate Republicans are trying to make the Senate Judiciary Committee the place where judicial nominations—all judicial nominations—go to die.
Last week, Republicans invoked a little known and rarely enforced Senate rule to cancel the committee’s executive session, where 15 judicial nominees were set to have votes and move to the floor. A few weeks before that, Republican committee members blocked another executive meeting by not showing up, thereby preventing a quorum.
And today, Republicans used procedural tactics to prevent a confirmation hearing for five consensus district court nominees, one of whom would fill a judicial emergency. All of these nominees have approval from their home state Senators, including Republican Senators in Maine and Kansas, but that doesn’t matter. Just as we saw with Republican opposition to President Obama’s nominees for the D.C. Circuit, individual merit—that is, the question of whether these nominees would make good judges—is entirely beside the point. This is payback time for Senate Republicans, and if it comes at the expense of Americans waiting to stand up for their rights in court, so be it. Senator Patrick Leahy—the Chair of the committee—has called this behavior a “Republican shutdown of the Judiciary Committee,” and observed that it “is consistent with the obstruction we have witnessed over the last five years” that has “led to record high vacancies in federal courts throughout the country.”
Meanwhile, preventing the committee from conducting regular business, though extraordinary, is not the only means of Republican obstruction. Even if the committee had held today’s hearing, it would have excluded a number of nominees who are still waiting (and waiting) for “blue slips” from home state Senators.
In keeping with Senate tradition, Senator Leahy will not schedule a hearing unless a nominee’s home-state senators give approval via “blue slips.” That’s why there was no nominee for a circuit court of appeals scheduled for today’s hearing. Eleventh Circuit nominee Robin Rosenbaum is set to move forward but the committee is still waiting, inexplicably, for Florida Republican Senator Marco Rubio to give his assent. (Rubio’s stalling on Rosenbaum is especially egregious because the Eleventh Circuit currently has four judicial emergencies, and another nominee, Jill Pryor, has been waiting for blue slips from the Georgia Senate delegation since February of 2012. Recall how, during the D.C. Circuit debate, Republicans kept saying more attention should be paid to judicial emergencies.)
Also missing from today’s schedule were five nominees to the District of Arizona, all of whom would fill longstanding judicial emergencies. Republican Senator Jeff Flake has withheld his blue slips on this entire slate of nominees, and his reason for doing so seems to be in flux. On December 8, his staff told that the Wall Street Journal that his review of the nominees was not yet complete. But less than a week later, on December 14, he told the Arizona Republic that he’s waiting for President Obama to name a sixth nominee—to fill the state’s final judicial vacancy—before he lets the first five have a hearing. The judicial vacancies in Arizona represent a crisis that worsens by the day, and there is simply no reason, with five pending nominees who have all been approved by Flake’s fellow Arizona Republican, Senator John McCain, for it to persist any longer.
By abusing the filibuster on nominations, the Senate Republicans left the majority no alternative but to change Senate rules. Thus far, Senator Leahy has shown great fidelity to the blue slip tradition. But he has also cautioned Republicans that blind, indiscriminate obstruction cannot be used to dismantle our democratic processes.
As Nan Aron wrote last month:
At some point we think the Senate Judiciary Committee will have no choice but to revisit the current blue slip process, or else a large chunk of the country will not have a fully functioning judicial system.
If the obstruction continues, that “some point” may be fast approaching.