Senate Republicans have made no effort to hide their opposition to President Obama's judicial nominees, abusing the confirmation process to such an unprecedented extent that the Democratic majority felt the need to execute the so-called "nuclear option." But the problem appears to be expanding: GOP senators have begun opposing their own recommendations for the bench.
It's quite common for U.S. senators to submit recommendations for district-court nominations to the White House, regardless of party. It's the sort of thing that's supposed to make the process easier.
But even this is starting to break down. Sen. Marco Rubio (R-Fla.), for example, endorsed Judge William Thomas, who currently serves on the Miami-Dade Circuit, for the federal bench. Rubio's team reviewed Thomas' record, subjected him to a background check, and encouraged the White House to nominate him. Obama's team agreed and sent the nomination to the Senate.
Then, however, Rubio learned that Thomas is gay, at which point the far-right senator announced his opposition
to the judicial nominee he recommended. The White House was ultimately forced to give up
on the qualified jurist, who was poised to become the first black openly gay man to serve as a federal judge.
Sen. Richard Burr (R-N.C.) is ... refusing to advance Jennifer May-Parker, a nominee for the U.S. District Court for the Eastern District of North Carolina, though Burr previously put May-Parker forward for the post. In a July 2009 letter to the White House, a copy of which was obtained by The Huffington Post, Burr recommended May-Parker for the slot and described her as having "the requisite qualifications to serve with distinction."
The White House evaluated May-Parker's background, agreed with Burr's recommendation, and sent the nomination to the Senate. She would fill a judicial slot that's been vacant since 2005 - the longest vacancy in the nation.
It looked encouraging, right up until Burr rejected his own recommendation.
In Rubio's case, the reversal at least has an explanation -- the far-right Floridian apparently didn't know Judge Thomas is gay when the senator recommended him. It's ugly and offensive to think Rubio would oppose his own pick solely on the basis of sexual orientation, but the Republican senator is a very conservative culture warrior with national ambitions. There's at least a rationale here, however upsetting it may be.
Won't the "nuclear option" help overcome this kind of obstructionism? No. Filibusters on judicial nominees are no longer permitted, but the "blue-slip" process remains in place
-- senators can block a nominee for the federal bench in his or her own state.
That said, judicial nominations are advancing overall, with the Senate Judiciary Committee this week approving 29 nominations, including five appeals court nominees, and sending them to the Senate floor. Jonathan Bernstein noted yesterday
that we'll get a better sense very soon of just how obstructionist the Republican minority intends to be.
Cloture procedures, which can eat up plenty of Senate floor time, are still in place for both judicial and the even more numerous executive-branch nominations. Republicans are not "shutting down" the Senate; for example, they aren't insisting that bills be read aloud. They did, however, drag out nominations back in December after Senate Majority Leader Harry Reid went nuclear, which meant that while Democrats were able to power through high-profile positions, lower-priority ones were held over to this year. It's still not clear to what extent Republicans will continue to obstruct; as Twitter-based nominations maven @Mansfield2016 points out, we'll know more after Reid tries to confirm some low-level executive-branch nominations through unanimous consent later today.
Kevin Drum added
, "If Republicans insist on cloture for every nominee, it will tie the Senate in knots since it eats up a few days of time to work through each cloture vote. Democrats will win them eventually now that it only takes 51 votes, but they can't afford to spend two months of floor time in order to confirm 29 nominees. So if Republicans play hardball, they could still block most of Obama's nominees."
This came up quite a bit in Obama's first term, even when Senate Dems had 60 votes -- Republicans could still drag things out before eventually losing, forcing the majority to invest a week just to approve one judge. Democrats often had other things they wanted to do, so even uncontroversial nominations would linger for months.
The "nuclear option" improves the process, but there are still a variety of choke points to slow things to a crawl whenever the GOP feels like it.