November 17, 2009

Senator Orrin Hatch Responds to Professor Carl Tobias on Judicial Nominations

Senator Hatch responded to an Op-Ed by University of Richmond law professor Carl Tobias yesterday on FindLaw:
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. ...

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.

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