September 08, 2008

Judges Battle Resumes; Justice Ginsburg Clone

With the political conventions over and Congress back today for its last few weeks of pre-election business, the final push for the confirmation of the President’s judicial nominees is on. We’ll look at the fight ahead, but first, here’s a few words about the elephant in the room, namely the two or more Supreme Court vacancies likely to occur under President McCain or Obama.

In an article about “a fascinating new documentary film” chronicling the Supreme Court confirmations battles of 2005-06,” MSNBC reports that “Advise and Dissent” will be released “as soon as the next vacancy opens on the court.” The film was screened in Minneapolis during the Republican Convention. MSNBC asked CFJ’s Curt Levey, one of the panelists in the discussion that followed the screening, whether a Republican minority in the Senate would fail to stop an objectionable Obama Supreme Court nominee “just as surely as Democrats did in trying to stop Alito and Roberts”:
“It very much matters who Obama nominates," said Curt Levey … If Obama sends up someone like liberal Justice Ruth Bader Ginsburg, then “I think she could be stopped fairly easily because she has such radical views. … If you had the proper resources to expose her record I think red-state Democrats would go running.” “As long as we have more than 40 Republicans plus red-state Democrats, I think extreme nominees can be stopped,” he added.
More immediately, the battle over the direction of the federal courts centers on the three dozen judicial nominees pending in the Senate, many of whom have been actively obstructed by Senate Democrats. The 28 pending district court nominees have languished in the Senate for up to 22 months, and half of the eight pending appeals court nominees have been waiting for more than a year.

To get a sense of what’s possible and reasonable in the remaining months of the 110th Congress, consider this statistic. During the previous three president’s final months in office – specifically Sept. 1 through Jan.19 – an average of 2 appeals court and 7 district court nominees were confirmed. Most notably, if we go back even further to Jimmy Carter, we find that Supreme Court Justice Stephen Breyer was confirmed to the U.S. Court of Appeals just a month before Carter left office, despite being nominated less than a month earlier. If not for the Senate’s swift action, it is very unlikely that Breyer would be on the High Court today.

Of course, Senate Democrats will do their best to fall short of these historical averages, just as they have fallen far short of the historical average (17) for appeals court confirmations by an opposition Senate in a president’s final two years. Therefore, the number of judicial confirmations in the final months of the 110th Congress will depend largely on the efforts of the GOP leadership and Judiciary Committee Republicans to press the Democratic majority for action on nominees.

Senate Republicans should focus on the following three goals:

1) Take care of the low hanging fruit. Most importantly, make sure that the two appeals court nominees supported by a home state Democratic senator – Glen Conrad (4th Circuit) and Paul Diamond (3rd Circuit) – get confirmed.

2) Use all possible leverage to press for action on the three additional appeals court nominees without home state opposition: Peter Keisler (DC Circuit), Bob Conrad (4th Circuit), and Steve Matthews (4th Circuit). Remind Judiciary Chairman Leahy of his repeated statements that the support of home state senators is the key to getting through his Committee. And remember that, with four vacancies and a 6-5 GOP-Democrat split, the soul of the all-important Fourth Circuit hangs in the balance.

3) Aim to meet or exceed the historical average of seven district court confirmations in a president’s final three months. Given the large number of pending district court nominees – most of whom are uncontroversial – this goal is well within reach.

Senate Republicans have every reason to make these goals a high priority. Ever since Democratic obstruction of President Bush’s judicial nominees became an issue in 2002, the judges issue has been
a central element of GOP victories in key Senate races, including John Thune’s victory over Tom Daschle. “There’s no doubt in my mind that we won races all throughout the country [on the judges issue],” says Karl Rove.

Conversely, Senate Democrats remember the Daschle defeat and don’t want their unprecedented obstruction of judicial nominees – including their hostility to nominees with traditional values – to be a campaign issue. As a result, Republicans will have increased leverage on judges during the Senate session that began today.