WASHINGTON — When former Senate Majority Leader Harry Reid (D-NV) triggered the “nuclear option” to eliminate the filibuster for most nominations in November 2013, the top Senate Republican issued a categorial threat.
“You’ll regret this,” said Senate Minority Leader Mitch McConnell (R-KY). “And you may regret this a lot sooner than you think.”
Seventeen months later McConnell is running the Senate, and he has made good on that promise during the first 100 days of Republican rule. The new Senate has confirmed just two judicial nominees so far (both in the last two weeks). And in a possible sign of more things to come, the high-profile executive nomination of Loretta Lynch for attorney general has been twisting in the wind for five months and counting, longer than any nominee for the job since 1985.
“Let me give you some idea. In President [George W.] Bush’s last two years, Democrats took over. By this time we had confirmed 15 — fifteen — of his judges,” Sen. Patrick Leahy (VT), the top Democrat on the Judiciary Committee, told TPM. “That speaks for itself — the Republicans will play partisan politics. Look at Loretta Lynch.”
That’s a huge slowdown from Democratic-led Senate over the last two years, which confirmed 132 judges, an average of more than five per month and the highest since the 1970s. Currently 18 nominations are languishing on the Senate floor and many more are bottled up in committee.
“It seems on its face that the slowdown we knew would come has come,” said Russell Wheeler, an expert on nominations at the Brookings Institution.
“A mix of reasons underlies the slow moving Senate on this score — including reaction to the Democrats’ nuclear move, reaction to the large number of judges confirmed over the course of Obama’s 6 years in office, and to GOP reluctance to give Obama the chance to further alter the makeup of the federal bench with lifetime appointees,” said Sarah Binder, a political scientist and professor at George Washington University.
Sen. John McCain (R-AZ), the chairman of the Armed Services Committee and a consistent defender of the filibuster, signaled Monday on CNN that the slowdown was partially as payback for the nuclear option. “I also told them when they did the nuclear option,” he said, “that I was not going to be in any hurry to confirm nominees that were not very important. And I’m not going to be embarrassed about saying that.”
McConnell is holding up a vote on Lynch by linking her confirmation to an anti-sex-trafficking bill that hit a wall more than a month ago as Democrats objected to abortion restrictions over how victims can spend compensation funds. He says Lynch, who has cleared committee and has the votes to be confirmed by the full Senate, won’t get a vote until Democrats drop their filibuster and pass the bill with anti-abortion language. “As soon as that happens,” he said, “we’ll turn to the Loretta Lynch nomination.”
“She has nothing to do with abortion. She has nothing to do with abortion. She has nothing to do with abortion,” said Leahy, showing a rare flash of anger.
Senate Judiciary Committee Chairman Sen. Patrick Leahy (D_VT), right, talks with Senate Minority Leader Harry Reid of Ne. on Capitol Hill. (AP Photo/Manuel Balce Ceneta)
Wheeler said it was uncommon for a Senate leader to link a nominee to an unrelated legislative matter. “It does seem a bit of an unusual move,” he said. “He obviously could have moved her forward. … I suspect she’s going to get confirmed soon because it’s getting embarrassing.”
Last week President Barack Obama called the holdup on Lynch “crazy” and “embarrassing” given that her qualifications and record as a U.S. attorney in New York were not in dispute. Monday on MSNBC, Sen. Joe Manchin (D-WV) thrice called the delay “ridiculous” and blamed it on a “toxic political environment.”
As progressives see it, the Republicans’ slow-walking of nominations vindicates Reid for weakening the filibuster and making a massive lame-duck push that ended with the confirmation of 59 nominations in his final act as majority leader.
“I think it’s disappointing but not unexpected that Senator Grassley and Senator McConnell would slow-walk this process,” said Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group. “Certainly one lesson is that we should all be very grateful to Harry Reid for the push that he made to get as many nominations and as many judges confirmed as he did before the Senate changed hands.”
The one top-level cabinet confirmation in 2015 has been Ashton Carter to replace Chuck Hagel as secretary of defense, a near-consensus nominee who sailed through on a vote of 93 to 5 in February. There have also been six lower-level executive branch confirmations.
The two judicial confirmations have been Alfred H. Bennett and George C. Hanks, Jr., to a trial court in the Southern District of Texas. Bennett was confirmed last week; Hanks was confirmed on Monday. Both were pre-approved by Texas GOP Sens. John Cornyn and Ted Cruz.
When it comes to judges, Republicans have a greater incentive to obstruct: run out the clock on Obama’s presidency and hope a GOP successor can fill those powerful lifetime-tenured slots.
All that said, presidents typically see fewer judicial confirmations in their final two years, particularly when the opposition party controls the Senate. So the slowdown isn’t without precedent. In his last two years George W. Bush appointed 68 of his 321 district and appellate judges; Bill Clinton appointed 73 of his total of 371*, according to data compiled by Wheeler of Brookings. At the current rate Obama’s fourth-quarter tally would be much lower.
Progressives see one silver lining: the opportunity to mobilize their base.
“I think [the Republicans] are going to have regrets, for sure. Midterm elections are always difficult, but presidential years are different. And I think these issues become more salient in 2016,” said Caroline Fredrickson, the president of the progressive American Constitution Society. “It’s not just the lower courts — the Supreme Court becomes a huge topic.”
(*Wheeler’s numbers count Appeals Court Judge Roger Gregory — who was recess-appointed by Clinton and confirmed by Bush — as a Clinton appointee.)