Senators overwhelmingly voted Wednesday to confirm their third federal appellate court nominee of the 110th Congress, just days after Senate Minority Leader Mitch McConnell (R-Ky.) privately told Majority Leader Harry Reid (D-Nev.) that he might trip up the Democrats’ floor agenda over stalled judicial nominations.
Senators voted 91-0 Wednesday to install Debra Ann Livingston to the 2nd U.S. Circuit Court of Appeals. Lawmakers voted in February to approve 9th Circuit nominee Norman Randy Smith and in March confirmed Thomas Hardiman for the 3rd Circuit.
GOP sources say McConnell made clear to Reid earlier this week that if the Senate didn’t start voting to confirm high-level federal judgeships in the coming weeks, Republicans would stop coordinating with Democrats on their priorities. Those sources say McConnell did not issue any concrete warning to block movement of any specific legislation but made clear to Reid that Republicans “are not going to make life easy for you” if judicial nominations are delayed.
“Sen. McConnell wants to keep the pace” of confirmation votes, said one GOP leadership aide.
Several GOP sources noted that McConnell brought up the judicial issue at the GOP Senators’ policy luncheon on Tuesday and indicated he had engaged in talks with Reid on his concerns about the Senate’s slow movement so far this year on confirming appellate court justices. McConnell, sources said, told Reid that the issue is such a priority that if denied votes on outstanding nominations, he would look to use it as a “leverage point” against Reid’s agenda.
“You have a very slim majority,” the GOP leadership aide said McConnell reminded Reid this week. “You need us to get things passed and we need you to get things passed.”
Jim Manley, Reid’s spokesman, declined comment Wednesday on any private discussions between his boss and McConnell, but he said any suggestion that the Majority Leader is slow-walking Senate consideration of appellate nominees “is not true.” Asked whether discussions between the two leaders influenced Reid’s decision to hold a vote Wednesday to confirm Livingston to the New York appeals court, Manley simply said: “No.”
The White House is hoping to advance at least 17 circuit judges over the course of the 110th Congress, the average number approved during the final two years of the past three presidents. Circuit court picks can be high-profile, and at times contentious, because they are lifetime appointments to a bench with significant influence.
Reid and McConnell have previously said they share the same goal as the White House — that the chamber should approve an average of at least one circuit court nominee each month for the first 17 months of the Congress, through mid-2008, when the countdown to the close of President Bush’s lame-duck term begins in earnest. That mark can still be met, even though Senators did not confirm an appellate nominee last month, sources in both parties say.
With that in mind, Senate Democrats continue to insist they have a solid record on judicial nominations, and in approving their third appellate nominee Wednesday, they say they are holding a relatively steady pace in installing the lifetime appointees. In fact, Judiciary Chairman Patrick Leahy (D-Vt.) took to the floor to counter any suggestion to the contrary and vowed to work in good faith with the GOP.
If Bush “really wants to help the federal judiciary, I’ve demonstrated over and over again I’ll work with him in a bipartisan fashion,” Leahy said.
The Vermont Democrat argued that in fact, under his years as chairman (now and when he briefly served for 18 months beginning in 2001), Democrats have been more consistent in approving judicial nominees than Republicans were when they were in charge. And, Leahy said, the Bush administration bears some responsibility for the clip of approvals, noting that the White House has been slow to make nominations, including for the 15 “judicial emergencies” for which fewer than half have a pending nominee.
But Sen. John Cornyn (R-Texas), a member of the Judiciary Committee who is active on the nominations issue, was quick to call Democrats out, arguing the majority may be overselling its résumé when it comes to approving appellate court nominations. Cornyn said that while the Senate “started off on the right foot,” it has fallen behind and its comity on the issue may not last long as a result.
“The facts are what they are,” Cornyn said before the Senate vote on Livingston. “This Congress has confirmed two circuit court nominees and we will shortly confirm a third, and that’s a good thing. But the fact is we are not yet back on pace.”