Senator Patrick Leahy (D-Vt.), the Chair of the Judiciary Committee, has swiftly held hearings and votes, sending nominees to the floor where many languish for months. Indeed, on September 22, the Senate recessed without acting on 19 excellent nominees, especially Bacharach and Dowdell, whom the panel reported because Republicans would not vote.
The GOP needs to cooperate more. The major problem is the floor. Senator Mitch McConnell (R-Ky.), the minority leader, has rarely entered agreements on ballots while he has routinely employed the unanimous consent practice to slow nominees. When the Senate has ultimately voted, it has smoothly approved many nominees, like Robert Shelby, who captured overwhelming confirmation in late September.
The Oklahoma Tenth Circuit post has remained open since June 2010 when Judge Robert Henry stepped down to assume the presidency of Oklahoma City University. Senators Inhofe and Coburn proposed and enthusiastically supported Magistrate Judge Bacharach whom President Obama nominated in January 2012. At his May hearing, Judge Bacharach won much praise for his command of constitutional and other questions that he would face on the appeals court. The panel reported Bacharach on a June voice vote with Utah Republican Senator Mike Lee voting against to protest Obama’s January Executive recess appointments. In mid-June, GOP leaders invoked the “Thurmond Rule,” saying they would oppose all Obama appellate nominees until the election. Therefore, on July 30, the Democrats moved for cloture on Bacharach but secured four less than the 60 votes needed with the Oklahoma senators voting present, which is essentially no. Because the Senate recessed until November Bacharach has not received a vote. The chamber must rapidly consider the nominee because the Henry seat has been vacant for two and a half years.
The Northern District position has been open since January 2010 when Judge Terence Kern went on senior status. On February 29, Obama nominated Dowdell who received a May hearing and panel approval on June 7 with Lee casting the sole no vote. Any time after that date, the chamber could have approved Dowdell in a minute on a voice vote, if Republican leaders had only relented and agreed to vote. The Senate must rapidly act on Dowdell because openings in 33 percent of Northern District judgeships undermine swift, economical and fair case disposition.
The vacancies in two Oklahoma judgeships erode justice. Thus, the Senate must quickly vote on Bacharach and Dowdell now that it has returned from its Thanksgiving recess to continue the lame duck session.
Tobias is the Williams Chair in Law, University of Richmond.