We are all used to judicial nomination fights, but what has been remarkable in the Obama Administration has been the molasses-like confirmation process for non-controversial nominees, especially federal district court nominees.
The numbers tell the story. If there is no agreement to hold a vote, it takes 60 votes to “invoke cloture” and vote up or down on a nominee. Only one of President Clinton’s district court nominees faced sufficient stalling that a cloture vote was filed to force a vote. Similarly, during the George W. Bush administration, there was only one cloture petition filed to force a vote on a district court nominee.
But during the Obama Administration, so far, there have been 21 cloture petitions filed to force votes on 21 district court judicial nominees. All of these nominees were subsequently confirmed, most of them with fewer than a half dozen no votes.
On Monday, the Senate is scheduled to hold a cloture vote on the nomination of Michael Shipp, a federal magistrate judge in New Jersey, nominated for a district judgeship and reported out of the Senate Judiciary Committee by a 17-to-1 vote three months ago.
Since then, Republicans have refused to agree to a vote on his nomination. So Senate Majority Leader Harry Reid filed a cloture petition to force a vote. Democats are still holding out hope that McConnell will agree to a vote, as he has when push has come to shove in some other similar cases.
Federal district court judges are the workhorses of the federal judiciary. They are the trial judges, and they typically have heavy workloads.
At the moment, though, those workloads are even higher than usual because of a large number of vacancies, many of them in areas of the country that are designated as judicial emergencies by the Administrative Office of the U.S. Courts.
Even in the last few decades, as judicial nominations have became more and more the focus of partisan controversy, district court nominees remained largely immune.
During the Obama administration, however, district court nominees, though largely uncontroversial, have been drawn into the web of partisan stalling.
There are currently 21 federal judicial nominees pending before the Senate. Four are uncontroversial appeals court nominees reported out of committee months ago. Seventeen are district court nominees.
The Senate is rapidly approaching the point past which it generally does not consider controversial judicial nominations. Usually, in a presidential election year, the Senate wraps up action on appellate nominations before the August recess.
District court nominations, however, usually keep moving, in part because they are such an essential part of the nation’s legal machinery. In 2008, for instance, the Democratically-controlled Senate confirmed 10 Bush district court nominees in late September.
In the current environment, however, past is rarely prologue.