Although much attention has been paid to the filibuster of appeals-court nominee Miguel Estrada — just Wednesday, Republicans made yet another unsuccessful attempt to break the Democratic blockade on his nomination — there is in fact a far larger story taking shape, one that has gone mostly unreported in the press. Using a variety of complicated parliamentary techniques that attract little public notice, Democrats are now blocking nearly every Bush nominee to the federal circuit courts of appeals. Their actions suggest that party strategists have abandoned an earlier plan to stop a few, carefully selected Bush nominees. Now, they want to stop them all. Since the new Senate convened in January, the president has nominated 19 candidates for the courts of appeals. At this moment, twelve of those nominees are being held up by Democratic opposition. Most of the rest are new nominations that haven’t yet had time to be blocked. Just two have been confirmed.
Estrada is, of course, caught in a filibuster. Fifth Circuit nominee Priscilla Owen, recently approved by the Judiciary Committee, is in pre-filibuster limbo. So is fellow Fifth Circuit nominee Charles Pickering, who has yet to come up for a new vote in the committee. Jeffrey Sutton and Deborah Cook, of the Sixth Circuit, and John Roberts, of the D.C. Circuit, are still awaiting floor votes after Democrats refused to allot time to debate their nominations. (In addition, Sutton has had a hold placed on his nomination by Democrat Tom Harkin, while Cook and Roberts are also under Democratic holds). Sixth Circuit nominees Richard Griffin, David McKeague, Susan Bieke Neilson, and Henry Saad have all been stopped by procedural tactics — the so-called “blue slip” — used by Michigan’s two Democratic senators, Carl Levin and Debbie Stabenow. Fourth Circuit Terrence Boyle has been blocked by North Carolina Democrat John Edwards. And the nomination of the Ninth Circuit’s Carolyn Kuhl, who had a hearing on Tuesday, appears headed for a protracted fight over the opposition of California’s Barbara Boxer.
Together, that makes twelve nominees paralyzed by Democratic opposition. Of the rest of the 19 Bush circuit-court nominees, five — Richard Wesley for the Second Circuit, Michael Chertoff for the Third Circuit, Edward Prado for the Fifth Circuit, Steven Colloton for the Eighth Circuit, and Consuelo Callahan for the Ninth Circuit — were nominated for the first time this year (most of them in March), meaning they have not had time to go through the process (or to develop serious Democratic opposition). Two nominees — Timothy Tymkovich of the Tenth Circuit and Jay Bybee of the Ninth — have been confirmed, Tymkovich nearly two years after his nomination.
In the cases that are currently blocked, some involve substantive issues — for example, a candidate who is thought to be insufficiently faithful to Roe v. Wade or “insensitive” to minority rights — while others are hung up on procedural objections. In one instance, Democrats are blocking three nominees (Sutton, Cook, and Roberts) because party leaders are angry at Judiciary Committee chairman Orrin Hatch for considering them all in one hearing instead of separate sessions. In another instance, Democrats are objecting to a nominee (Kuhl) because they say Republicans have given too little deference to blue-slip issues. In another (Estrada), Democrats say they haven’t been given enough information to make a decision.
“This is an indication of what a determined minority can do in the Senate,” says one Republican. “I wouldn’t go so far as to say we’re flummoxed, but we are dealing with a very obstructionist minority in the best way we can.”
Responding to charges of obstruction, Democrats say that it was Republicans who practiced wholesale obstruction of judicial nominees when they controlled the Senate during the last six years of the Clinton administration. But by any measure, Democrats have blocked more Bush appeals-court nominees than were blocked by Republicans in even the worst of the Clinton years, when relations between the parties were poisoned by scandal and impeachment.
Of course, at that time, some in the GOP were advocating wholesale obstruction. But party leaders rejected the idea. “This is something Republicans could have done during the Clinton administration, but there were a lot of [Republicans] who wouldn’t go that far, who for reasons of comity and the sake of the process refused to do it,” says one party aide.
But now, GOP leaders face those very obstructionist tactics from Democrats and are growing increasingly frustrated. Republicans control the Senate, albeit narrowly, and party leaders and activists believe they ought to be able to confirm the president’s judicial nominations. But Senate rules give the minority party substantial power, and the only thing that would discourage them from using that power would be negative public opinion — that is, if there were a real political price to be paid for their actions. So far, however, most of the judicial battles have drawn little attention. Some of the reasons for that are obvious: there are lots of other things happening in the world. But many of the blocked judicial nominations involve arcane rules that would not make the front page even on a slow news day.
For example, Levin’s and Stabenow’s move to kill a bloc of four circuit court nominees — an astonishingly bold act — has received almost no attention (See “Much More Democratic Obstruction“). It seems unreasonable to suggest that Levin and Stabenow could be pressured to back away without public opposition, yet it is difficult for the public to oppose what it doesn’t know. So the four judges remain blocked.
It is not clear whether the new Democratic across-the-board blockade will ultimately succeed (although it is certainly succeeding at the moment). And it is true that the White House has other things to worry about now. But if the president wants to place judges on the federal courts of appeals, he will eventually have to engage Democrats in political battle — the only thing that can break the current stalemate.