PJ Media

Benched by the Senate: Who Made It Through in Last-Minute Confirmations

WASHINGTON – Senate Democrats and the Obama administration took full advantage of the extended legislative session on the $1.1 trillion spending plan that ended on Dec. 16, using the extra time to confirm a dozen nominees to federal judgeships that could result in a lasting imprint on the courts.

In all, the upper chamber confirmed 17 judges to various court levels in December, most by voice vote. The action leaves 42 vacancies in a federal judiciary that totals 874.

Since November 2013, when Democrats employed a parliamentary maneuver to change Senate rules prohibiting filibusters on any judicial nominees save for those nominated to the Supreme Court, the chamber has confirmed 132 judgeships. Prior to the rules change, virulently opposed by Republicans, Obama witnessed only 45 judicial confirmations in 2013 and 49 in 2012.

Senate Democratic Leader Harry Reid, of Nevada, said the chamber was able to reach that high-water mark thanks to his decision to deploy what has been characterized as the “nuclear option.”

“Throughout the 113th Congress, Senate Democrats have focused on confirming well-qualified judicial nominees to relieve the judge shortage plaguing our nation’s justice system,” Reid said. “Despite unprecedented obstruction, today’s statistics show that Senate Democrats were able to overcome political gridlock and confirm the highest number of district and circuit court judges in a single Congress in over thirty years.”

After six years in office, President Obama has managed to see 305 of his district and circuit court nominees confirmed – a success rate unmatched by any of his predecessors over a similar period.

By comparison, President George W. Bush, Obama’s immediate predecessor, managed to gain confirmation of 256 district and circuit court nominees after six years in office. President Bill Clinton  got 302 confirmed and President Ronald Reagan confirmed 295.

According to the White House, 42 percent of Obama’s confirmed judges are women, 19 percent are African-American, and 11 percent are Hispanic. Eleven are openly gay or lesbian.

Of the final 12 nominees squeezed in at the session’s close, Robert Pitman will become the first openly gay judge to serve on the U.S. Fifth Circuit Court of Appeals, which includes Texas, Louisiana and Mississippi. And Loretta Biggs will be the first black woman to serve as a district judge in North Carolina.

But the Obama gravy train may be rolling to a sudden halt. Republicans hold the majority in the upcoming 114th Congress, setting the stage for more confrontational relations during the president’s final two years in office.

The Republican Policy Committee, led by Sen. John Barrasso, of Wyoming, a group representing the GOP caucus, complained that “none of these nominees are essential to keep the government running” and that the time used in the confirmation proceedings would have been better spent debating “important tax and spending issues, including matters that actually have a deadline or could help to create American jobs.”

The RPC also objected to the lame duck session being used to consider judicial nominees, asserting it represented “the latest example of his disregard for the traditional practices of the Senate.”

“The last time the Senate confirmed judges who had been reported during a lame duck session was 2002,” the group said. “During the past two election cycles, when judges were reported out of committee during the lame duck session, the nominations were returned to the White House without confirmation during the session.”

Not this time, and Democrats took the opportunity to thank Sen. Ted Cruz (R-Texas) for ironically providing the opportunity to consider the president’s nominations. Democrats had hoped to confirm some nominees during the waning hours of the lame duck session but the clock was ticking and it appeared the chamber wouldn’t get the opportunity to consider more than a handful at best.

Democrat and Republican Senate leaders had, in fact, reached a deal to take a break over the weekend of Dec. 13-14, returning on Dec. 15 for a final vote on the spending package and perhaps to fill a couple judicial vacancies before adjournment.

But Cruz scotched the deal, forcing lawmakers to remain in session over the weekend in an effort to force a vote on funding related to Obama’s executive order regarding immigration, which essentially protects more than 5 million undocumented workers from being deported. His move kept the Senate in session that Saturday and provided Reid with the opportunity to call for votes on 12 district court nominees remaining on the calendar.

The White House took note of the opportunity Cruz provided. Press secretary Josh Earnest said he wasn’t sure if what he characterized as Cruz’s “shenanigans” contributed to the effort to get the judges confirmed.

“If that’s the case, it may be an indication that Sen. Cruz doesn’t know much more about Senate floor procedure than I do,” Earnest said. “But we certainly are pleased with the outcome.”

Cruz is reported to have apologized to his Republican colleagues during a closed-door meeting after the votes for keeping them in session.

As it turned out only one nomination, Stephen R. Bough to serve as a district judge in the Western District of Missouri, engendered any real opposition. Sen. Chuck Grassley (R-Iowa), who will become chairman of the Senate Judiciary Committee when the Congress reconvenes in January, opposed the nomination, asserting that Bough didn’t maintain the temperament to be a federal judge, having participated in what Grassley maintained was a “judge shopping” scheme in a civil case.

Bough also was active in Democratic politics in Kansas City. Regardless, his nomination was confirmed 51-38.

And there is some interest over one Obama nominee who didn’t make the final cut. Georgia Court of Appeals Judge Michael Boggs was nominated to serve as a district judge but he received staunch opposition from Democrats on the Senate Judiciary Committee who objected to his record related to civil and reproductive rights. Two Democratic congressmen from Georgia, Hank Johnson and David Scott, have gone so far as to send a letter to Obama asking that he not re-nominate Boggs for the position once the 114th Congress convenes.

As a former state lawmaker, Boggs voted to retain the confederate symbol on the state’s flag. Obama nominated Boggs as part of a deal with Sen. Saxby Chambliss, (R-Ga.) and Sen. Johnny Isakson (R-Ga.).

The White House has not indicated if it intends to re-nominate Boggs.