Courts • Stalling by Congress affects even nominees with bipartisan support.
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With its summer break fast approaching, calls are mounting for the U.S. Senate to put politics aside and act on nominees for long-empty judicial seats, including two in Utah's federal court system.
On Thursday, American Bar Association delegates from Oklahoma asked that state's two senators to press for a floor vote on the appointment of Judge Robert Bacharach to the 10th Circuit Court of Appeals, which also hears appeals for Utah, Colorado, Kansas, New Mexico and Wyoming.
President Barack Obama nominated Bacharach, a magistrate judge for the Western District of Oklahoma, on Jan. 23 and the Senate Judiciary Committee on June 7 gave the judge virtually unanimous support Utah Sen. Mike Lee's symbolic "no" vote aside.
"We understand that both political parties have engaged in a variety of stalling tactics, including the threat of a filibuster, regarding judicial nominations in the past," the delegates wrote to Sens. James M. Inhofe and Tom Coburn. "However, this ignores the fact that this Oklahoma slot on the 10th Circuit has now been vacant for over two years."
But with confirmation votes on such nominations moving at the rate of one a week, any action on the 21 federal court nominees pending in the Senate before the August recess appears unlikely, especially with the Senate minority leader vowing to block further federal circuit court vacancies under the so-called "Thurmond Rule."
And that is baffling to some court observers.
While it has long been opposing party practice to stop the judicial nomination process in the spring preceding a presidential election, there is typically an exception for nominees with "an unusual degree of unanimous support," said Michael McConnell, director of the Stanford Constitutional Law Center and a former 10th Circuit Court judge representing Utah.
"Judge Bacharach has such strong support and such a good reputation across the spectrum that I am hoping that he will be the exception that does get confirmed, even in an election year," McConnell said Thursday. "But Washington is a pretty political and partisan place these days, so who knows?"
In a move highlighting how the process has stalled, the Senate on Monday confirmed Kevin McNulty to New Jersey's District Court but will not consider a second nominee, Michael A. Shipp, to the same district until Monday, when a cloture vote is scheduled. Both nominations, which received virtually unanimous support from the Senate Judiciary Committee, have been pending in the Senate since April.
Sen. Patrick Leahy, D-Vt. and Judiciary Committee chairman, said the minority's "stalling votes on judicial nominees with significant bipartisan support is all to the detriment of the American people."
"What they are doing now is a first," Leahy said. "In the past five presidential election years, Senate Democrats have never denied an up-or-down vote to any circuit court nominee of a Republican president who received bipartisan support in the Judiciary Committee."
As for the district courts, six of 13 nominees awaiting Senate confirmation are considered judicial emergencies based on existing case loads and length of time seats have remained empty. Among them: Robert J. Shelby, nominated eight months ago to fill a post in the U.S. District Court for Utah vacated when Tena Campbell took senior status in January 2011.
Shelby, like a majority of the other district court nominees, received unanimous bipartisan support from the Judiciary Committee; the committee approved Shelby in April.
"Really you are in a situation now where it really is unprecedented in the extent of the obstruction," said Glenn Sugameli, staff attorney with Judging the Environment, which keeps watch on federal judicial nominations. "It makes no sense. It is even hard to figure out what the motive is at this time, other than to deny confirmations. I think they are clearly trying to leave a lot of these seats open for a different president to fill."
McConnell, however, said while that is not a good practice, "it is not a new practice." Nor is the process slow only in election years. In his own case, McConnell, nominated by President George W. Bush in September 2001, waited 19 months before the Senate approved his confirmation in November 2002.
"I do think it is unfortunate that the Senate has gotten into this habit of holding up confirmations in election years, but I don't know that it is any different this time than it has been in the past," McConnell said. "The whole judicial confirmation process has become a mess. It takes too long and it's become acrimonious."
Mark Jones, court clerk for Utah's District Court, said the four senior judges hearing cases two are still carrying a 60 percent case load have helped the court keep pace with filings, despite recent vacancies.
The judicial vacancy crisis
Glenn Sugameli, a staff attorney whoever oversees a federal judicial nomination project for Judging the Environment, said the Senate could easily act "tomorrow" on the dozen or so federal bench nominees with unanimous support from its Judiciary Committee.
"There are plenty of examples in the past when there were votes on a bunch of people at the same time," he said. The Senate acted on 10 district court nominees during a single vote in September 2008, for instance including some who had committee hearings days earlier.
"Clearly there can be, should be and has been Senate action in presidential years to confirm consensus nominees well into September," he said.