Bench Memos

Senator Whitehouse’s One-Way Courtesy

At the Senate Judiciary Committee markup last week, Senator Sheldon Whitehouse, in trying to make the case for confirmation of his own fatcat Democratic donor (and trial lawyer) John J. McConnell Jr. to a district judgeship in Rhode Island, argued for “a tradition of Senatorial courtesy to the judgment of the Senators of the home state.”

It’s understandable that Whitehouse would prefer not to argue McConnell’s nomination on the merits.  Especially given how much litigation experience McConnell has (he’s been a trial lawyer for 25 years), the mediocre ABA rating that he received—substantial majority “qualified”/minority “not qualified”—ought to set off alarm bells.  That rating makes even more clear that Whitehouse and his fellow senator from Rhode Island, Jack Reed, recommended McConnell’s nomination because of his campaign contributions and trial-lawyer depredations (here’s one example)—not, as they claimed (in the Providence Journal’s paraphrase), because of his supposed “qualities of legal ability, intellect, temperament and integrity.”

But where, one wonders, was that supposed “tradition of Senatorial courtesy to the judgment of the Senators of the home state” in 2003 and 2004, when Senate Democrats prevented a floor vote on the district-court nomination of J. Leon Holmes—who had the support of both the Democratic senators from Arkansas—for over fourteen months from the time the committee reported his nomination?  Where was it in 2007 and 2008, when committee Democrats refused even to give a hearing to district-court nominees Thomas A. Farr (nominated in December 2006 and renominated in January 2007), William J. Powell (May 2007), and Colm F. Connolly (February 2008) and refused to hold a committee vote on Richard H. Honaker (March 2007), Gustavus Puryear (June 2007), and David J. Novak (November 2007)—all of whom had the support of both their home-state senators?

Incidentally, all of these Bush 43 nominees had higher ABA ratings than McConnell:  Farr, Connolly, and Honaker were unanimously rated “well qualified”; Holmes, Powell, and Novak were rated substantial majority “well qualified”/minority “qualified”; and Puryear was unanimously rated “qualified.”

Whitehouse’s apparent response is to define this “tradition of Senatorial courtesy” in a highly gerrymandered way:

[I]t has always been the tradition of this body that when the two home state Senators approved a nominee, when they have cleared the background check and when they have cleared the Committee, they got a straight up or down vote on the Senate floor without procedural obstruction, period.

In short, under Whitehouse’s version of the “tradition of Senatorial courtesy,” it’s fine for the single senator who is chairman of the Judiciary Committee to deny a hearing or a committee vote to a nominee who has the support of both home-state senators.  That’s hardly consistent with a robust tradition of substantial deference to home-state senators.  Nor does the Holmes example fit the supposedly absolutist tradition that Whitehouse posits.


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