The Senate's discourtesy to judges

The New York TimesApril 2, 2014 

The following editorial ran in the March 30 New York Times:

The job of federal judge for the Eastern District of North Carolina has been vacant for more than eight years, one of the longest vacancies of 83 on the federal bench around the country. In June, President Barack Obama nominated Jennifer May-Parker, a federal prosecutor, for the position, but she hasn’t even received a vote in the Senate Judiciary Committee because Richard Burr, the state’s Republican senator, is blocking her.

The strange part is that Burr himself recommended her for the seat in 2009. But now he’s changed his mind and won’t say why, exploiting an archaic Senate tradition to make sure Obama can’t fill that vacancy.

That tradition, known as the blue slip, gives senators the ability to block any judicial nomination in their state, no explanation necessary, before it even reaches the stage of a committee hearing – never mind the Senate floor. There’s no formal rule enshrining this tradition, and the committee’s chairman, Sen. Patrick Leahy, D-Vt., could end it tomorrow. But he has inexplicably clung to the practice, preventing worthy nominees from being confirmed and allowing petty Republican politics to reduce Obama’s influence on the bench.

If a home-state senator won’t return a blue piece of paper agreeing to a judicial nomination, Leahy won’t give the nominee a committee hearing or a vote. It’s a form of senatorial courtesy that goes back to 1917 or so, giving senators an anti-democratic power never contemplated in the Constitution.

As with the filibuster, members of both parties have abused the privilege, but only when it suits them. When Sen. Orrin Hatch, R-Utah, was the chairman of the committee during the presidency of George W. Bush, he would allow nominations to proceed over the objections of both home-state senators, as long as the president “consulted” with them first.

Leahy has not the done the same for Obama and his nominees, thus undercutting the important Senate rules change in November that prevented a minority of senators from blocking any executive nomination. Blue slips, or the lack thereof, have held up 11 judicial nominees; there are also 30 vacancies with no nominees because it is clear that a Republican senator would object.

The administration has been reduced to nominating a few unpalatable judges in the hopes of cutting deals. Texas has nine court vacancies, but its two senators won’t work with the White House on any nominees.

It doesn’t have to be this way. Leahy claims that the Senate will always defer to home-state senators. But, if he were to eliminate the practice, he would force senators to raise their objections publicly.

Now they hide behind a procedure that allows them to block able nominees because they want one of their cronies to get the job, or don’t want liberals or minorities on the bench or are afraid that any appearance of collaboration would rile the tea party.

Senators with real complaints should state them on the floor and hope to persuade a majority. At the moment, unfortunately, Republicans believe they have a serious chance of regaining the Senate in November, and they seem to have no interest in approving any of Obama’s judicial nominations through the end of his term. That’s an abuse of the system, and Leahy is running out of time to stop it.

New York Times News Service

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