Significant Events and Issues
On January 3, 2013, the day that the 112th Congress adjourned sine die and the 113th Congress convened, 77 vacancies existed on the federal courts. President Obama immediately renominated the 33 nominees pending at adjournment, including two who had been successfully filibustered and 11 who were waiting for a final floor vote. Each of these nominees has to go through the entire confirmation process again because nominations expire at the end of a Congress. President Obama has made additional nominations since then.
On January 24, Senate leaders agreed to a modest packet of reforms to Senate procedures and rules, including a minor change to the filibuster procedures for district court nominees that reduced post-cloture debate to two hours.
A brief explanation is required to understand the significance of this change. Floor votes may only be scheduled on judicial nominees by unanimous consent. Absent unanimous consent, the majority leader’s only alternative is to attempt to force a floor vote by filing a cloture petition on the “filibustered” nominee. This requires the Senate to vote on whether it will permit the nomination to be scheduled for a floor vote. Cloture is invoked if 60 senators agree to let the nomination be deliberated on the floor. The Senate then has 30 hours in which to debate the nominee. This is a very inefficient way for the Senate to operate unless the stakes are very high, especially when form trumps substance.
As a result, Senate leaders agreed to limit the time for post-cloture debate on district court nominations to two hours for the duration of the 113th Congress. This modest change could increase the pace of district court confirmations, a record number of whom were filibustered last Congress. The two leaders also agreed that senators who wish to object or threaten a filibuster must actually come to the floor to do so, and that they will make sure that debate time post-cloture is actually used for debate and not as a tactic to slow down business.
This is the second time Reid and McConnell have agreed to modest procedural changes: at the start of the 112th Congress, they eliminated the use of secret holds, long considered a senatorial privilege. The agreement requires disclosure of the senator placing a hold within two days.
The Senate, which ceased voting on circuit nominees in June of last year at the insistence of the Minority Leader, who said he was invoking the “Thurmond Rule,” voted on the first nominee of the 113th Congress mid-February, confirming William Kayatta, who waited 10 months for a floor vote to a seat on the First Circuit, by a vote of 88-12. In a stunning reversal by the minority, on February 25, the Senate voted 93-0 to confirm Robert Bacharach to the Tenth Circuit, whose nomination had been successfully filibustered last Congress. And on March 11, Richard Taranto, who had waited for a floor vote for almost a year, was confirmed to the Federal Circuit by a vote of 91-0. Caitlin Halligan, beleaguered nominee to the DC Circuit, did not fare as well: a second attempt to bring her nomination to the floor failed on a cloture vote of 51- 41. On March 22, Caitlin Halligan withdrew her nomination. During March, the Senate also confirmed six district court nominees by voice vote, and Elissa Cadish, originally nominated in February 2012, withdrew her nomination.
Despite these confirmations, the number of vacancies has increased since the start of the 113th Congress.
The Senate recessed for spring break with fifteen nominees pending on the Senate floor, thirteen of whom were reported by the Senate Judiciary Committee by unanimous voice vote. The Senate should schedule a time to vote on all of these noncontroversial nominees promptly after it returns and should schedule time to debate and then vote on the two pending nominees who were contested in committee soon thereafter. Rather than drawing out the confirmation process by adhering to a scheme of scheduling votes on only two or three noncontroversial nominees at a time, the Senate should act boldly and schedule a vote on all 13 nominees at once. This would fill vacant seats on 12 separate courts, including four that are considered judicial emergencies. It also would reduce the vacancy rate to eight percent.
Speeding the pace of confirmations is only one part of the problem; lasting progress also requires more timely work at the front-end of the process. A constant flow of nominees in the pipeline keeps the process moving and creates additional incentive for the Senate to schedule prompt votes. At present, there are 58 vacant seats, over 1/3 of which are identified as judicial emergencies, without nominations pending. At present, there are 11 nominees pending in committee. If more nominations are not forthcoming, the Senate Judiciary Committee soon will have no more nominees to consider.
To remedy this, the White House and Members of the Senate need to make a concerted effort to work together to shorten the time between vacancy and nomination, especially for those vacancies classified judicial emergencies. Because of the deference traditionally given to senators with regard to filling district court vacancies, senators should be prepared to identify potential nominees and to submit recommendations to the President as early as possible after a future district court vacancy in the state is announced. (Whereas the Administration takes the lead in screening candidates for appellate court positions, it traditionally waits for recommendations from home-state senators -- or sometimes from representatives if both senators are from the opposite party -- for nominations to vacant district court seats.)
Most importantly, throughout the process, the White House and home-state senators need to make the prompt filling of vacancies a priority and engage in pre-nomination consultation over all potential judicial nominees with the sole purpose of reaching consensus on qualified candidates for nomination to life-time positions on the federal bench.