Red-state Dems in hot seat

Greg Nash

Vulnerable Senate Democrats have voted consistently to confirm President Obama’s judicial nominees, and it could come back to bite them on the campaign trail.

Republicans are focusing on those votes for appellate and district court judges to rev up their base voters ahead of midterm elections that are going to hinge on turnout.

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Red-state Democrats such as Sens. Mark Begich (Alaska), Mary Landrieu (La.), Kay Hagan (N.C.) and Mark Pryor (Ark.) have stressed their independence from their party, but they will have to defend their record of voting for nearly all of Obama’s court picks.

Republicans have in particular set their sights on Begich, who boasted to The Washington Post in a recent interview that he is a “thorn” in Obama’s posterior.

“There’s times when I’m a total thorn, you know, and he doesn’t appreciate it,” he said.

But when it comes to confirming Obama’s choices for the bench, Begich has been accommodating. Since the Senate changed its filibuster requirements in November, he has cast only a single vote against one of the president’s judicial nominees, opposing Edward G. Smith, whom the Senate confirmed in March to preside over the Eastern District of Pennsylvania.

But Smith was an unusual nominee who was unpopular with Democrats because of his opposition to abortion rights and support for ending entitlement programs when he ran for a congressional seat in Pennsylvania in the mid-1990s.

Obama nominated Smith as an olive branch to Republicans, and a majority of Republicans backed putting him on the bench while 30 Democrats and Sen. Bernie Sanders, a liberal independent from Vermont, voted against him. 

Begich, Hagan and Landrieu all voted for Cornelia Pillard, one of Obama’s most controversial picks for the D.C. Circuit Court of Appeals, the second most powerful court in the nation after the Supreme Court.

In a 2011 essay, Pillard urged that American legal thinking should shift “from nation- or region-centric to a more broadly transnational, even global orientation,” a statement that is red meat for conservative base voters.

One Democratic aide argued votes for Pillard and other judicial confirmation votes did not deserve criticism because nominees are recommended by home-state senators, vetted by the president’s staff and voted on by the Judiciary Committee. 

But that process alone is not always enough to reassure all Democrats. Pryor, Sen. Joe Manchin (W.Va.) and Sen. Joe Donnelly (Ind.) were centrist Democrats who voted against Pillard.

“Judicial nominees are certainly an issue for Mark Begich,” said National Republican Senatorial Committee spokesman Brad Dayspring, who pointed to Begich’s votes for Obama’s nominees to the 9th Circuit Court of Appeals as another concern they intend to push. 

“The 9th Circuit has already proven to be a huge hurdle to energy development in Alaska,” he said, noting that Shell suspended plans to drill in the Arctic after an unfavorable ruling by the 9th Circuit.

“But Begich has supported every single one of Obama’s nominees to the 9th Circuit, dragging a Court crucial to Alaska energy development further to the left,” Dayspring said.

Jennifer Duffy, senior editor for the nonpartisan Cook Political Report, said the attacks on judicial votes could be dangerous if Republicans can tie them to local concerns.

“You’ve got to make it relevant to the state, which I think they can do with the examples of the 9th Circuit. If you can make it relevant, then yes, it can make a difference,” she said. “It certainly fires up Republicans.” 

Democrats say these attacks are unfair because they omit crucial context.

Five of the nominees to the 9th Circuit whom Begich supported — Andrew Hurwitz, Morgan Christen, Goodwin Liu, Helen Murguia and Paul Watford — also received backing from Sen. Lisa Murkowski (R-Alaska), who serves as the ranking member of the Energy Committee. Murkowski voted to advance Hurwitz and Liu to a final up-or-down votes and voted to confirm Watford, Christen and Murguia.

While those votes all took place before the Senate changed its filibuster rules, Republicans say vulnerable incumbents deserve special scrutiny for the judicial confirmation votes taken after Senate Majority Leader Harry Reid (D-Nev.) moved unilaterally to lower the procedural hurdle for nominees from 60 to 50 votes. 

The GOP’s counterargument: Democratic centrists are now responsible for weeding out extreme nominees because Republicans in the minority cannot use the filibuster anymore to stop them.

Yet since Reid invoked the “nuclear option,” Landrieu has cast only four votes against two Obama’s judicial nominees: against Gerald McHugh, who was confirmed to the Eastern District of Pennsylvania and David Barron, who was placed on the First Circuit Court of Appeals.

Since late November, almost all of Landrieu’s votes on judicial nominees have supported the president.

A Landrieu aide noted, however, that she voted for 92 percent of President George W. Bush’s judicial nominees, subscribing to the belief that a president should be able to get his court picks unless extraordinary circumstances compel them to vote no.

Pryor cast three votes against two of Obama’s judicial nominees, McHugh and Pillard, but well over 90 percent of his judicial votes since November have supported the president’s picks.

A Democratic aide noted Pryor played a role in putting together the “Gang of 14” deal of 2005 that paved the way for several of Bush’s most conservative nominees to win confirmation.  

In the Senate’s post-nuclear landscape, Hagan has cast only one vote against one of Obama’s judicial nominees: Smith, the district judge whom most Democrats opposed.

Justin Barasky, a spokesman for the Democratic Senatorial Campaign Committee, said Republicans are grasping at straws to find a convincing political argument now that the potency of their ObamaCare attacks have faded some.

“The NRSC thinks the sun rising forecasts doom for the Democrats in 2014, but the truth is these races aren’t going to be a referendum on President Obama or a single Washington issue,” he said.

He argued the election will be a choice between Democrats fighting for their states and Republicans beholden to a “special interest agenda that is good for billionaires.”