— by Chris Kang, Senior Counsel to the President, May 17, 2013
Yesterday, President Obama demonstrated his continued commitment to increasing the diversity of our federal judiciary, so that it better reflects the nation it serves. He nominated four distinguished women to serve on four different courts—women who not only have the necessary intellect, integrity and fair-mindedness to serve as federal judges, but whose nominations also represent important “firsts” in their state or district:
- If confirmed to the U.S. Court of Appeals for the Tenth Circuit, Judge Carolyn McHugh would be the first woman from Utah to serve on that court. Currently, the Tenth Circuit only has one woman judge serving among its nine active members.
- Pamela Reeves and Elizabeth Wolford would be the first women to serve as district court judges in the Eastern District of Tennessee and Western District of New York, respectively, if confirmed.
- Debra Brown would be the first African-American district court judge to serve in the Northern District of Mississippi and the first African-American woman to serve as an Article III judge in the entire state of Mississippi, if confirmed.
President Obama’s judicial nominees already have broken the gender barrier in circuit courts in six states, as well as nine district courts, and have shattered dozens of glass ceilings for minorities. And on Monday, the Senate will consider the nomination of Michael McShane to be a district court judge in Oregon; if confirmed, he would be the fifth openly gay judge appointed by President Obama, compared to only one in history before.
These “firsts” are important, not because these judges will consider cases differently, but because a judiciary that better resembles our nation instills even greater confidence in our justice system, and because these judges will serve as role models for generations of lawyers to come.
Finally, I wanted to note another “first” yesterday: for the first time, President Obama has nominated more district court judges than President George W. Bush had at the same point in his presidency. While a faster pace of judicial retirements has led to a greater number of vacancies—many still without nominees—this record demonstrates the strength of the President’s commitment to addressing the judicial vacancy crisis in our country. He will continue to work with home state Senators from both parties to identify and consider candidates for the federal judiciary. We urge the Senate to consider yesterday’s nominees—and all judicial nominees—without unnecessary delay.
In related news:
If you’ve been paying any kind of attention to what’s been going on in the Senate, the GOP (Goons Opposing Progress) have found a new way of obstructing nominations from moving forward for a vote — at the committee level — by failing to show up for committee meetings so quorums aren’t met. That was the case for nominations to fill EPA and Labor. But finally, on Thursday, the Senate Environment and Public Works Committee approved the nomination of Gina McCarthy to head the EPA on a party-line vote, 10-8. On the same day, the Health, Education, Labor, and Pensions (HELP) committee voted 12-10, also along party lines, to advance Labor Secretary nominee Thomas Perez.
The number of vacancies in the Judiciary has reached crisis mode and the GOP is doing their darnedest to prevent the President from filling any openings with “Liberal” justices.
How the Confirmation Process Works
- The confirmation process begins when the President selects a nominee for a vacant judgeship. Traditionally, the President selects a nominee in consultation with the Senators who represent the state in which the judge will serve. Senators typically have their own methods of evaluating potential nominees, and can signal their approval or disapproval of a nominee through the blue slip process.
- The President then refers the nominee to the Senate Judiciary Committee. The Judiciary Committee evaluates the nominee by gathering information, running a background check, and reviewing the record and qualifications of the nominee.
- The Judiciary Committee holds a hearing on the nominee. Witnesses present testimony on the nominee. Some of the witnesses favor and others oppose the nomination. The nominee also answers questions from the Committee. Senators who oppose a nominee can attempt to delay or derail a nomination by requesting additional information or additional time as a hearing approaches.
- The Judiciary Committee votes on whether to report the nominee to the full Senate. If the Committee does report the nominee, they can submit the nomination with a favorable recommendation, an unfavorable recommendation, or no recommendation at all. Senators who oppose the nomination can attempt to delay a nomination by using procedural tactics to prevent a committee vote.
- The full Senate has the opportunity to debate the nomination. The Senate debates until a Senator asks for unanimous consent to end debate and move to a vote on the nominee. If unanimous consent is granted, the Senate votes on the nominee, with a majority vote required for confirmation. Any Senator can refuse to grant unanimous consent. This situation is known as a hold.
- If any Senator objects to unanimous consent, then a cloture motion must be filed in order to end debate and move to a vote. A cloture motion requires 60 votes to pass. If 60 Senators support cloture, the full Senate will vote on the nomination, with a majority required for confirmation. If fewer than 60 Senators support cloture, debate continues and a confirmation vote cannot occur. This is known as a filibuster.
- Once the Senate holds a confirmation vote, with a majority voting to confirm, the nominee becomes a Federal Judge.
Sen. John Cornyn (R-TX) has been in the news of late complaining that too many judicial openings have gone vacant for far too long in Texas. Well, maybe Sen. Cornyn should take a look at a look in the mirror. Refer to step one above, the process for approving a new district court judge, per longstanding tradition, begins with a senator forwarding recommendations from his or her state to the president. Sen. Cornyn has failed to take any such action for years.
So as you can see, in the case of the Judiciary, there are three opportunities to gum up the works: (1) Shrug off their duty to propose any judiciary candidates to the President, (2) Fail to show up for committee meetings such that the committee has no quorum to allow a vote, and (3) if all else fails, just filibuster whoever does manage to make it out of committee.