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Bench Memos

NRO’s home for judicial news and analysis.

Marco Hernandez’s Confirmation: A Case Study



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Among the three federal district court nominations confirmed by the Senate on Tuesday was that of Oregon judge Marco A. Hernandez to the District of Oregon. A house editorial in the Oregonian presents Hernandez’s strange and extended path to confirmation as a “case study of the broken, politicized confirmation system.” Unfortunately, the editorial gets a key fact wrong and thus draws a wrong lesson from its case study.

President George W. Bush first nominated Hernandez to the District of Oregon in July 2008. The Oregonian editorial asserts that that nomination had the “strong bipartisan support of Democratic Sen. Ron Wyden and then-Republican Sen. Gordon Smith” but nonetheless died. But in fact, according to knowledgeable Senate sources, Wyden blocked action on Hernandez’s nomination by never returning his blue slip* (the form by which home-state senators express their agreement to committee action on a nomination). Senate insiders suspect that Wyden acted at Senator Leahy’s behest, in order to prevent President Bush from getting credit for appointing Hispanic judges.

President Obama finally got around to renominating Hernandez in July 2010—18 months into his presidency. Senator Leahy didn’t schedule his hearing until November 17, and the committee didn’t report the nomination to the Senate floor until December 8, so it wasn’t acted on in the last Congress. But Hernandez’s renomination last month was promptly confirmed.

One of the lessons that the Oregonian somehow draws from the Hernandez confirmation process is that “more than a few Republicans are all too eager to get their hands on Obama’s appointments.” There is nothing in the Hernandez case study that supports that lesson. It’s because of Senator Wyden that Hernandez wasn’t confirmed more than two years ago.*

I’m certainly not disputing that Republicans have targeted some of Obama’s nominees as unfit for confirmation—and properly so. I also will acknowledge that the confirmation process generally takes too long, and I would welcome what the Chief Justice has called for: “a long-term solution” to the problem. But the path to that long-term solution isn’t advanced by mistaken (and seemingly partisan) accounts like the Oregonian’s.

* Update: See amplification/clarification.



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