Republicans must cooperate better. The essential bottleneck is the floor. Republican Leader Mitch McConnell (Ky.) has infrequently entered accords to vote. The unanimous consent procedure, which permits a lone senator to stop ballots, has delayed many nominees. Most problematic has been GOP unwillingness to consider excellent consensus nominees, inactivity that contravenes Senate customs. When senators have voted, they easily confirmed many nominees like Lorna Schofield, who earned 91-0 appointment in December.
The 18 circuit openings are essential because the courts are the tribunals of last resort in 99 percent of appeals. Obama has tapped eleven superb nominees. They include Magistrate Judge Robert Bacharach whom Obama recommended for a June 2010 Tenth Circuit vacancy. He should keep cooperating with Leahy and Democratic Leader Harry Reid (Nev.), who arranges floor votes, and their Republican analogues to smooth evaluation while nominating strong candidates for the seven remaining openings. Two comprise Tenth Circuit vacancies that arose when Judge Murphy assumed senior status on December 31, 2012 and Judge Deanell Tacha resigned in January 2011.
In January 2012, Obama nominated Bacharach, who secured the best ABA rating: well qualified. During May, the panel accorded him a smooth hearing and on June 7, reported Bacharach by voice vote with Senator Mike Lee (R-Utah) voting no to protest Obama’s January Executive recess appointments. Six days later, Republican Leader McConnell invoked the “Thurmond Rule,” opposing every Obama appellate nominee until after the November elections. Notwithstanding Obama’s reelection and Democrats’ enhanced Senate majority and strong pleas for post-election votes on these nominees from Senator Leahy and the nominees’ Republican and Democratic home state senators, the GOP refused to vote and the 112th Senate adjourned on January 1 without considering the nominees, whose nominations expired. Therefore, on January 3, Obama renominated all seven nominees, including Judge Bacharach. Because the jurist is a highly qualified consensus nominee, the committee speedily reapproved him last Thursday and senators should grant Bacharach an immediate floor vote.
For its part, the administration must expeditiously nominate outstanding candidates for the Murphy and Tacha openings. Obama ought to swiftly pursue the advice and support of Utah Republican Senators Orrin Hatch and Lee and quickly nominate a fine prospect for Judge Murphy’s post. Obama did promptly nominate Steve Six, whom the ABA rated unanimously well qualified, to Judge Tacha’s Kansas seat in March 2011. Six ably fielded sharp questions at his May hearing. However, Kansas GOP Senators Pat Roberts and Jerry Moran announced their opposition to Six before the panel could vote, and his nomination expired. Thus, Obama must expeditiously consult the Kansas senators and speedily nominate a strong candidate.
Because openings in ten percent of circuit judgeships and in one quarter of Tenth Circuit positions can undermine justice, President Obama must rapidly nominate, and the Senate speedily consider, exceptional nominees for the appellate vacancies.
Tobias is the Williams Chair in Law at the University of Richmond.