Appellate litigator Edward DuMont, nominated by President Obama in April 2010 to the U.S. Court of Appeals for the Federal Circuit, has requested that his nomination be withdrawn.
In his letter to the president, DuMont states his “understanding” that the Senate Judiciary Committee’s inaction on his nomination during a period of more than 18 months “results from opposition on the part of one or more members of the Committee minority” (i.e., the Republicans). He further states that he “recognize[s] that any degree of opposition can be enough, as a practical matter, to prevent action by the full Committee or the Senate.”
I believe that DuMont’s letter is mistaken and misleading. As his letter correctly notes, the Judiciary Committee has not even held a hearing on his nomination. As a general rule, there are two reasons why a Judiciary Committee chairman who is of the same party as the president would not schedule a hearing on a nominee over a period of more than a year:
One reason is that the nominee hasn’t received positive blue slips from his home-state senators. That reason doesn’t apply to DuMont’s nomination to a judgeship in D.C., which has no home-state senators.
The second reason is that the nominee hasn’t cleared the Judiciary Committee’s background-investigation (BI) process. That process is conducted on a bipartisan confidential basis and has developed nonpartisan norms over the years on which issues either require resolution before a hearing can be scheduled or, for issues that can’t be resolved, are barriers to proceeding with a hearing.
Given that Chairman Leahy never scheduled a hearing on the DuMont nomination, it’s sensible to infer that DuMont never cleared the BI process. Indeed, I don’t see any support for an alternative explanation.
There is simply no basis for DuMont’s suggestion that mere “opposition on the part of one or more members of the Committee minority” would prevent Leahy from scheduling a hearing. Nor is he right that “any degree of opposition can be enough, as a practical matter, to prevent action by the full Committee or the Senate.” There are plenty of nominees who have cleared the Committee while receiving negative votes and who have been confirmed in the face of substantial opposition. DuMont’s statements cannot remotely explain why Leahy didn’t schedule a hearing on his nomination.