Senators Argue Over End-of-Term Nominees, ‘Thurmond Rule’

By John Gramlich, CQ Staff

Senate Majority Leader Harry Reid is expected to set up cloture votes on one or more appeals court nominations in the coming weeks, defying the Republican minority’s position that time has run out for confirmations of circuit court judges before the presidential election.

Minority Leader Mitch McConnell, R-Ky., announced last week that Republicans were invoking the “Thurmond Rule,” the customary slowdown on judicial confirmations — especially those to the federal appeals courts — imposed by the opposition party when a president is nearing the end of a term. The rule is named after the late Sen. Strom Thurmond, R-S.C.

Reid, D-Nev., might ordinarily be hamstrung by McConnell’s announcement, since Democrats do not have the 60 votes needed to advance nominations opposed by the minority. But two of President Obama’s circuit court nominees awaiting Senate floor votes have the backing of home-state GOP senators.

William Kayatta Jr. of Maine, tapped for the 1st U.S. Circuit Court of Appeals, is supported by Maine Republican Sens. Olympia J. Snowe and Susan Collins. On Monday, both senators said through spokesmen that they would support a cloture motion on Kayatta’s nomination.

Collins added in a statement that “It simply isn’t fair that Bill, who would be a superb judge, now appears to be caught up in election year politics. I have urged my colleagues on both sides of the aisle to give Bill the direct vote by the full Senate that he deserves.”

Robert E. Bacharach of Oklahoma, nominated for the 10th Circuit, is backed by Oklahoma’s two Republican senators, Tom Coburn and James M. Inhofe.

Two other circuit nominees — Patty Shwartz for the 3rd Circuit and Richard G. Taranto for the Federal Circuit — also appear acceptable to senators in both parties.

Last week, Reid won a 60-31 cloture vote on the nomination of Andrew A. Hurwitz to the 9th Circuit, no doubt in part because Hurwitz had the support of Arizona Republican Sens. John McCain and Jon Kyl. The day after that vote, McConnell announced that he intended for Hurwitz to be the final circuit court nominee confirmed before the election.

Carl Tobias, a University of Richmond law professor, said Reid has nothing to lose by calling additional cloture votes on appeals court nominees, since even unsuccessful efforts would allow him to portray Republicans as blocking qualified judges. “I don’t think he has any choice,” Tobias said.

And the Maine senators may want their nominee to get the same consideration Hurwitz received.

The Arizona senators “needed the Maine senators to get cloture on Hurwitz,” said Glenn Sugameli, who monitors judicial confirmations as a staff attorney for Defenders of Wildlife. “Are they going to turn around and shaft the Maine senators by not allowing votes on their people?”

Although Republican leaders have vowed to block all appellate judges until the election, they have left the door open for District Court judges to be confirmed. Twelve remain ready for floor action after the Senate voted Monday to confirm Mary Geiger Lewis for a U.S. District Court seat in South Carolina.

The Senate has confirmed five circuit court judges this year. No presidential election year since 1992 has seen more than eight appellate confirmations. Four were confirmed in 2008. In both 2008 and 2004, the latest date on which a circuit court judge was confirmed was June 24.

First posted June 19, 2012 12:36 a.m.

Correction
An earlier version of this story misspelled Glenn Sugameli's name.