Report: Plan to speed up judicial nominations could be stalled

By Jessica M. Karmasek | Feb 14, 2012






CHARLESTON, W.Va. (Legal Newsline) - An effort by U.S. Senate Democrats to speed up judicial nominations could be delayed.

According to Roll Call, Democrats are facing a Feb. 29 expiration of the payroll tax break, among other important business items.

Senate Democratic leadership aides said because of the deadline, Democrats might have to skip their scheduled Presidents Day recess, which starts next week.

That also means plans for speeding up judicial nominations by holding votes before the holiday will most likely be pushed back.

However, no firm decisions have been made on the matter, the aides told Roll Call.

The votes would help Democrats gauge whether Republicans will filibuster nominations.

GOP senators are still fuming over President Barack Obama's decision last month to make a controversial recess appointment of former Ohio Attorney General Richard Cordray to the post of director of the U.S. Consumer Financial Protection Bureau.

The CFPB was created by the Dodd-Frank regulatory overhaul and is tasked with regulating consumer financial products.

Democrats, including Obama, argued Republicans were "stonewalling" Cordray's nomination.

So, Obama went ahead and appointed Cordray. In turn, some Republican senators have threatened to hold up Obama's nominations.

In his State of the Union address, the president called for an end to the stalling. Instead, he asked the Senate to pass a rule that all judicial and public service nominations receive a "simple up or down vote" within 90 days.

The Senate aides told Roll Call that Democrats had planned to hold votes on a package of both judicial and administration appointees, or hold votes on separate packages, before the Feb. 17-24 recess.

The aides said nominees with bipartisan support would be included to "ferret out ideological opposition."

Carl Tobias, the Williams Professor of Law at University of Richmond's law school and a keen observer of judicial nominations, said it remains "unclear" exactly what will happen -- for those West Virginia nominees, especially -- or, at this rate, when it will happen.

Berkeley Circuit Judge Gina Groh was nominated by Obama to the U.S. District Court for the Northern District of West Virginia in May to fill the vacancy left by the 2006 death of Judge Craig Broadwater.

West Virginia attorney Stephanie Thacker was nominated by the president in September to serve as a judge on the U.S. Court of Appeals for the Fourth Circuit. Thacker would replace Judge M. Blane Michael, who died earlier this year. Michael had held the position since 1993.

The U.S. Senate Judiciary Committee voted in October to approve Groh to the federal court and in November approved Thacker's nomination to the federal appeals court.

Both must now be confirmed by the full Senate.

"There was no (Senate Judiciary Committee) hearing for nominations this week, though they have been every two weeks since the 112th Senate began last year, except for December," Tobias said Wednesday.

"There also have been no floor votes since Jan. 23, the day the second session convened."

With the outlook growing bleaker, Tobias said Democrats may need to move for cloture.

Still, he said he expects a floor vote on Groh's nomination later this month.

Tobias noted Groh has waited longer than almost all district nominees and is both "well-qualified" and "non-controversial."

But Thacker's floor vote -- in light of the power struggle and the fact that the Senate has moved more slowly on appellate nominations -- is more difficult to predict, he said.

"She is second in line after 11th Circuit nominee (Adalberto) J. Jordan, so I still expect the Senate to vote on her in March because she, too, is well-qualified, uncontroversial and has the West Virginia senators' support," Tobias said.

No matter what, the issue is sure to come to a head -- and sooner rather than later, the law professor said.

He pointed to comments made by Sen. Patrick Leahy, D-Vt., on the Senate floor Tuesday morning.

Leahy, the chairman of the Senate Judiciary Committee, said the obstruction of judicial nominees is the worst he has seen in more than 30 years of Senate service.

"I have never seen anything like this," he told fellow lawmakers.

"These delays are a disservice to the American people. They prevent the Senate from fulfilling its constitutional duty. And they are damaging to the ability of our federal courts to provide justice to Americans around the country."

Leahy said Republicans need to "abandon their rhetoric" and do as Senate Democrats did when they worked to confirm 100 of President George W. Bush's judicial nominees in 17 months.

"The cost of this across-the-board Republican obstruction is born by the American people. More than half of all Americans, nearly 160 million, live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations that have been reported favorably by the judiciary committee," he told lawmakers.

"It is wrong to delay votes on these qualified, consensus judicial nominees. The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason."

The result of the GOP's inaction, he said, is that the people of New York, California, West Virginia, Florida, Nebraska, Missouri, Washington, Utah, the District of Columbia, Nevada, Louisiana and Texas are without the judges they need, and that the judicial emergency vacancies in Florida, Utah, California, Nevada and Texas remain unfilled.

"Our courts need qualified federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who seek their day in federal court to suffer unnecessary delays," Leahy said.

"When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for three years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute."

Tobias agreed.

"It is very harmful to judges, litigants and attorneys, whose cases are delayed," he said.

"It puts unfair pressure on the other judges, and (the U.S. District Court for) the Northern District of West Virginia is a good example."

From Legal Newsline: Reach Jessica Karmasek by email at

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