Fight my ignorance. I searched but couldn’t find the straight dope on this question. This is what I keep hearing:
R: The senate has filibustered and refused to vote on large numbers of judicial nominees. The D’s are being obstructionist and partisan.
D: Not at all, we’ve approved 201 out of 211 nominees. (or some such figure)
What I can’t seem to follow is whether or not that 201 out of 211 includes the judges who were filibustered and not brought up to vote (e.g. Miguel Estrada) As I understand it, the equation should be
N = A + D + F
N being judges nominated,
A being nominees approved
D being nominees voted down
F being judges filibustered and not voted on
If anyone can fill in the values, I’d appreciate it.
It isn’t quite that simple. At any given time, some judges will be legitimately awaiting Judiciary Committee hearings or floor votes. And, the traditional filibuster isn’t the only possible delaying tactic. Senators of either party can “blue slip” nominees from their own state, which prevents the Judiciary Committee from even holding a hearing on a nominee, or the committee chairman can simply refuse to schedule hearings. This latter is uncommon now that the Senate and the President are controlled by the same party, but it happened regularly during 2001-2002.
Now, then. According to the Department of Justice, President Bush has nominated 260 candidates to federal district and circuit courts since taking office. Of these, 201 had been confirmed as of the update date on their web site; the Senate is back in session so they might be a few days out of date if any action is taking place right now. No nominee has been rejected in a floor vote. Two candidates have withdrawn (Estrada after a filibuster and Rohlfing after failure to gain a hearing). One nomination lapsed with the 107th Congress and was not renewed for the 108th. Seven nominees are awaiting Judiciary Committee hearings, five are awaiting a Judiciary Committee vote, and 14 are awaiting floor action by the full Senate.
Of those 14, some portion are being filibustered and some are awaiting a vote just because the Senate hasn’t gotten around to it yet. Naturally, the DOJ doesn’t make this distinction. The consensus among other sources appears to be that 10 (counting Estrada) are being or have been filibustered. In addition, it appears that about six nominees are being blue slipped (the tables are a little confusing) which could also be construed as a delaying tactic.
Weren’t there a couple of judges who were installed by Pres. G. W. Bush when the Senate was not in session, thereby bypassing the approval process? I can’t remember the technical name for that maneuver, or I would have looked it up myself. As I understand it, judges installed this way remain in office only as long as that president does.
Yes, that’s called a “recess appointment”, and Bush has done it twice, with Pickering and Pryor. The appointments expire with the end of the current session of Congress, not when Bush leaves office, so they will expire in a few days.
Back in the dawn of time, if both of a state’s senators “blue-slipped” a nominee from their state, the nominee would never make it out of comittee.
During the 90’s it became possible for a single senator to “blue-slip” a nominee (from his or her state);.
During Bush’s presidency the senate has switched back to requiring 2 blue slips. Senate leadership has also contemplated doing away with the blue slip procedure altogether.
Another recent feature of the Senate Judiciary Committee (dating to the current presidency) is the abolition of rule 4, which required that a candidate receive at least one vote from the minority party in order to make it out of committee and be voted on.
The filibuster is currently the only mechanism that the minority party has to stop judicial or other nominations. There is some talk of removing this option - changing the rules such that judicial nominations are not filibusterable (or of doing away with the filibuster entirely). Both of these options seem unlikely.