Tuesday, November 26, 2013

From Consent to Advice -- other possible avenues to block judges in the Senate

Yesterday, we all crawled out from our radiation shelters to behold the charred remains of the Senate landscape. You see, Harry "Major Kong" Reid engaged the nuclear option last Thursday, blowing up chamber procedure and changing to require only a majority vote to end debate on executive and non-Supreme Court judicial nominations.

So now what? Over the short term, the confirmations should flow fairly quickly. There are currently four appeals (including the three D.C. circuit nominees) and 13 district court nominations that have passed through the Senate Judiciary Committee and are awaiting floor action. They should fly through in a jiffy in December.

Behind that immediate flurry, the picture gets a bit murkier. There are currently 93 vacancies on the federal bench --  18 on the appellate level and 75 at the district level. Getting the 17 easy confirmations out of the way leaves 76 slots (14 appellate and 62 district). Of these Obama has nominees for six appellate and 30 district vacancies.

There are two ways Republicans can slow down or block nominations to these vacant slots.

For nominees already awaiting committee action, there is the "Blue Slip" system, which is nicely outlined by Mother Jones' Kevin Drum here. The basic idea that the home state senators of the court that the nominee will be serving on gets to block the nominee unless they return their approval to the Chairman on an official paper form that is, you guessed it, blue.  It's a very old Senate tradition, which has undergone variations over the years. The idea is to give Senators some say (consent) in nominees from their own state. Here's Drum's summary:

Pre-1994: Generally speaking, only one blue-slip is needed for a nominee to move forward.
1995-2000: Republicans take control of Senate and decide that two blue slips should be required. This makes it easier to kill Clinton nominees.
2001: George Bush is elected president. Republicans no longer want to make it easy to block nominees, so they return to the rule that only one blue-slip is required to move forward.
2001-02: Jim Jeffords defects, putting Democrats back in control of the Senate. They return to the rule requiring two blue-slips to proceed.
2003: Republicans win back control of the Senate. They up the ante by effectively moving to a zero blue-slip rule: they'll allow hearings on nominees even if no senators return blue-slips. Democrats threaten to filibuster over this rather obvious abuse of power and insist on a return to the two blue-slip rule.
2007-Present: Democrats win control of the Senate and Pat Leahy of Vermont becomes chairman of the Judiciary Committee. Leahy is a traditionalist who maintains the two blue-slip rule.
You can see the issue. States with at least one Republican senator can theoretically stop any judicial nominee. (see this Florida example starring GOP Senator Marco Rubio here) States with two senators from the GOP can easily kill nominations. This stopping power won't slow down approval of states with two Democrats in the Senate (20 states at present), but as long as Leahy keeps the two-slip rule, the possibility for abuse exists from the other states.

The second way that Republicans could slow nominations down is through the initial nominations process itself. Most Senators submit a list of qualified nominees that they would support or screen a list of potential nominees from the president. Some do this informally, while others set up a formal nominations commission. This is part of the "advice" that senators traditionally provide the executive branch on staffing the judicial branch.

Senators who want to grind the process to a halt can simply neglect to staff their nominations commission, or don't encourage it to produce any nominees. Texas is a prime example of this feature, and Charles Kuffner, the dean of Houston's blogging community, has noted with frustration the stalling of senators John Cornyn and Ted Cruz. The state with nine openings on the federal bench-- two of which are emergencies and none of which have nominees. Two of those openings are on the Fifth Circuit court of Appeals, which covers Texas, Louisiana and Mississippi, and is full of appointees from Ronald Reagan and George W. Bush. That court just refused to stay Texas' recent law imposing numerous new restrictions and regulations designed to close down abortion providers in the state.  Filling two vacancies would help rein in some of its excesses.

Note that none of these procedures apply for executive nominations, however. Those should move considerably more quickly. And these road blocks will only slow down some federal judges, not all, or even most of them. But they still present some challenges to Obama even getting nominations from the more conservative parts of the country, let alone getting judges on the bench.

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