AFJ Condemns Republican Obstruction of Circuit Court Nominees

Washington, D.C., June 14, 2012—As part of a relentless and destructive three-year-long campaign by Republicans to block and delay President Obama’s federal court nominees, Senate Minority Leader Mitch McConnell has told members of his caucus that he will prevent any votes on pending circuit court nominees for the remainder of the year, ensuring that our severely understaffed courts will remain in crisis and further undermining Senate procedures and traditions in the name of partisan warfare.

McConnell cites the so-called Thurmond “Rule” as justification for preventing circuit court nominees from coming to a vote during the final year of a president’s term, but there is no such formal Senate rule in theory or in practice. His disingenuous use of a non-existent “rule” to justify obstruction is simply a way of dressing up in a false cloak of legitimacy a strategy of obstruction that has been in effect since Day One of the Obama presidency.

Senator McConnell and his colleagues do not need to go back very far in history to find that their understanding of the “rule” is incorrect. In fact, between today’s date and the election of 2004, the Senate confirmed 17 of President George W. Bush’s district court nominees and three of his circuit court nominees. In a comparable period in 2008, the pattern was almost identical, with the Senate confirming 17 of President Bush’s nominees to district courts, and two of his circuit court nominees. 

There are currently four circuit court nominees on the Senate floor waiting for a final vote: Patty Shwartz (3^rd Circuit); Richard Taranto (Federal Circuit); William Kayatta (1^st Circuit); and Robert Bacharach (10^th Circuit). At the end of President Bush’s first term, the Senate had confirmed 35 of his circuit court nominees; so far, only 30 of President Obama’s have been approved. The confirmation of the four pending nominees would bring the Obama and Bush records into closer alignment.

AFJ President Nan Aron called for the swift conformation of all four pending circuit court nominees, saying, “We have been watching for over three years as Senate Republicans have found one excuse after another to prevent President Obama’s nominees from getting final up-or-down votes. Now, they are trotting out a false and misleading “rule” that even a cursory glance at the historical record shows is a myth. Even Senator Coburn, whom no one would mistake for a supporter of this administration, recently said that it would be ‘stupid’ if Senate Republicans blocked votes on unquestionably qualified nominees like Robert Bacharach. We wholeheartedly agree. We would also extend the same principle to the other three men and women who have been waiting patiently for an opportunity to serve their country on the federal bench. The American people are growing tired of partisan games and want the Senate to stop making excuses for why things can’t get done, and to get down to the business of governing the country.”

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A report on the history and use of the so-called Thurmond Rule is available here.

Up-to-the-minute statistics on judicial nominations in the current year are always available online on the Alliance for Justice’s Judicial Selection page, which contains the highly regarded Judicial Selection Snapshot, as well as data on Nominees Pending on the Senate Floor, a list of Vacancies Without Nominees, and our new Judicial Selection Calendar.

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Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. AFJ works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. It is the leading expert on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. AFJ is based in Washington, D.C. Additional information can be found at www.afj.org.