The Senate entered the weekend without taking action on 17 pending judicial nominations, including that of Monroe County Court Judge Frank P. Geraci Jr. who is being considered for the U.S. District Court for the Western District of New York.
Senate Minority Leader Mitch McConnell, R-Ky., Thursday blocked a consent agreement on the nominations, proposed by Senate Majority Leader Harry Reid, D-Nev.
“There’s still a possibility that they could agree and confirm some or all of those nominations,” Glenn Sugameli, head of Judging the Environment’s judicial nominations project in Washington, D.C., said Friday. “Nobody has opposed any of the 14 nominees who came through committee on voice votes.”
Judge Geraci’s nomination was approved by voice vote July 19 by the Senate Committee on the Judiciary and forwarded to the full Senate for a vote, which McConnell blocked Thursday.
Sugameli said unless the Republicans agree to allow a vote, there would not be enough time to vote on the pending nominees before the Senate recesses until after the Nov. 6 general election.
He was not optimistic action would be taken between the elections and when the 113th Congress is seated in January.
“It’s a total crap shoot,” Sugameli said. “The idea that maybe we might get to one of these in the lame duck session is no comfort at all. The idea that you might have to wait to fill these judicial emergencies until well into next year is outrageous. This is appalling.”
As of Friday, there were 78 Article III vacancies, including 62 for district courts. Judge Geraci is being considered to fill a vacancy in Rochester created by the March 2009 elevation of Judge David G. Larimer to senior status. The post is one of 33 federal judicial emergencies. Of the 17 nominations on the Senate calendar, 12 are judicial emergencies.
“I am disappointed to say my Republican friends on the other side of the aisle have informed me they will not agree on votes on any of these nominees,” Reid announced Thursday, according to the report in the Congressional Record. “Republicans can offer no reason for blocking these bipartisan consensus district court nominees.”
Reid noted the Senate has considered district court nominees in presidential election years as late as October, but has never blocked a district court nominee from receiving a vote on the Senate floor until now.
He added that right before the last presidential election, in September 2008, Democrats confirmed 10 of then-President George W. Bush’s district court nominees in one day.
“More than half of the nation’s population, 160 million Americans, live in the part of the country where there has been a judicial emergency declared,” Reid said. “That means more than half the people in this country seek justice from courts and judges that are strained to the breaking point under a backlog so intense, an emergency has been declared.”
He concluded, saying he hoped to get something done before senators left Washington and the he did not want to file cloture on the nominees before the end of the year.
“It is quite curious that my friend, the majority leader, is complaining about the one area I can think of over the last year and half where the Senate has met historic norms,” McConnell countered. “In other words, we have handled judicial confirmations in this Congress here in the Senate in a way that meets and, in some cases, exceeds historic norms.”
He went on to say this year, the Senate has confirmed five circuit court and 29 district court nominees which he called a good record for a presidential election year, noting 24 district court nominees were confirmed in the last year of Bush’s presidency.
“In fact, in 2008, the Democrats treated President Bush’s nominees so badly that they were forced to confirm — as the majority leader bragged — 10 nominees in September of that year just trying to catch up to historical norms,” McConnell said.
He added that 77 percent of President Barack Obama’s nominees, 158 of 205, have been confirmed, compared to 74 percent of Bush’s nominees during his first term and 61 percent in his second term.
“So, whether it is being looked at in terms of absolute confirmations or relative confirmations, this president is being treated very fairly,” McConnell said. “I am happy to work with the majority leader, but we cannot allow the majority to jam us here at the end of this session, therefore I object.”
Sugameli called McConnell’s statistics “a numbers game” and said there is no reason for Republicans to object. He agreed with Reid that votes on district court nominees who have the support of their home senators and are unopposed have never been blocked before.
Sugameli said there is no reason to leave the judicial nominations hanging, “other than sheer partisan obstruction,” something he said he has never seen before in all the years he has been following judicial nominations.
“This still stuns me,” he said. “It’s a big deal because there are over 800 district judges and they’re the judges who hold trials and decide issues that are critical to ordinary people, companies and others,” Sugameli said. “That’s where justice delayed is justice denied is especially true, at the trial court level.”
Fourteen of the pending nominees, including Judge Geraci’s, were approved by voice vote by the Senate Committee on the Judiciary and have the support of their state senators.
“This is not the first time we have seen obstruction for obstruction’s sake over non-controversial, consensus nominees to the federal bench,” said Sen. Charles E. Schumer, D-N.Y., speaking Thursday from the Senate floor. “It has been going on for four years.”
He noted Judge Geraci has “total bipartisan support” and that his nomination has been pending for more than two months. Judge Geraci was recommended for nomination by Schumer in February. Obama accepted the recommendation and officially nominated Judge Geraci on May 24 and the Senate Judiciary Committee approved it July 19 and sent it to the full Senate.
Besides Schumer, Judge Geraci is also supported by New York’s junior senator, Kirsten Gillibrand. Sen. Mike Lee, R-Utah, has expressed opposition in judicial nominee voice votes, including Judge Geraci’s, but that has not been against the nominees personally, but blanket opposition to President Barack Obama’s making some appointments during the holiday recess at the end of 2011 into this year.
If the Senate fails to confirm Judge Geraci’s nomination this year, it will be returned to the Office of the President for consideration to be presented to the 113th Congress which convenes in January.
“There is plenty of recent precedent for confirming at least the 17 pending nominees,” Sugameli said. “Something still could happen. It should happen. It always has happened. What tends to happen is that nominations, including judicial nominations, are the last thing they do before they walk out the door.”