Bench Memos

Deceptive Argument for Lame-Duck Judicial Confirmations

[Update: A reader has called to my attention information that indicates that my assumption about what actually happened, and why, during the 2006 lame-duck session is wrong, at least in part and perhaps entirely. I will try to sort things out before I head out of town. In the meantime, please regard this post as suspended. (De-publishing it strikes me as much less transparent.)]

On Huffington Post, Paul Gordon of People for the American Way urges Senate Democrats to use the lame-duck session to confirm 16 district-judge nominations that are on the Senate calendar as well as eight more that haven’t yet moved out of committee. Gordon cites as supposed precedent for such sweeping lame-duck action the fact that 20 of President George W. Bush’s nominees were confirmed during the 2002 lame duck.

One basic problem with Gordon’s supposed precedent is that it was the president’s party that won control of the Senate in the 2002 elections. The Democrats had used their majority power to obstruct nominations until then. (Only 80 judicial nominations had been confirmed in 2001 and 2002.) As the same party as the president, the Senate Republicans obviously concluded that the pending nominees did not require yet further review.

By contrast, when the party taking control is opposite the president’s party, that party can reasonably be expected to conduct whatever further “due diligence” review of nominees that it thinks is warranted. Further, Obama—thanks largely to the Democrats’ abolition of the filibuster a year ago—has already had an extraordinary 105 appellate and district-court nominees confirmed in 2013 and 2014.

The precedent that Gordon should have looked to is the lame-duck session in 2006, just after the Democrats won control of the Senate in the November 2006 elections. At that time, there were 13 district-judge nominees on the Senate calendar. None got confirmed in the lame duck. That’s the example that Republicans should follow. (There was one appellate pick—a sitting district judge who had been confirmed to that position by a unanimous voice vote—who got confirmed in the lame duck.)

Most Popular

Elections

Election 2020’s Endgame

Today on the menu: States are certifying their votes, and Trump's legal team is in turmoil. The 2020 Election Starts to Wind Down Michigan and Pennsylvania are set to certify their election results today, and Nevada is scheduled to do the same tomorrow. Saturday night, U.S. district judge Matthew W. ... Read More
Elections

Election 2020’s Endgame

Today on the menu: States are certifying their votes, and Trump's legal team is in turmoil. The 2020 Election Starts to Wind Down Michigan and Pennsylvania are set to certify their election results today, and Nevada is scheduled to do the same tomorrow. Saturday night, U.S. district judge Matthew W. ... Read More