Senate Republicans’ blockade of Supreme Court nominee Merrick Garland is dominating debate on Capitol Hill but Democrats are equally frustrated by the pace of lower court confirmations, which they argue have ground almost to a standstill in the GOP controlled chamber.
On Monday, the Senate approved Waverly Crenshaw to be U.S. District Judge for the Middle District of Tennessee, making him possibly one of President Barack Obama’s last judicial nominees to win confirmation to the bench. Republicans are soon expected to refuse to confirm any more lifetime appointments as the end of the President’s term approaches.
Democrats point to Waverly as a case in point of their concerns: Nominated 14 months ago, the Nashville attorney was expected to fill a seat on a court facing a “judicial crisis” because the caseload is too large for the judges to handle.
Waverly also has the support of Tennessee’s two Republican senators.
Sen. Lamar Alexander called him an “outstanding nominee” and Sen. Bob Corker said he is a “talented attorney.”
Nevertheless, it took Senate Majority Leader Mitch McConnell nine months to schedule a floor vote after Waverly unanimously cleared the Senate Judiciary Committee. He was approved by the full Senate 72-0.
A top GOP leadership aide said more confirmations are likely in the months ahead, at least until the Senate recesses in July for the party conventions.
There are a handful of nominees pending who have the support of GOP senators in their states, including two from Pennsylvania backed by Sen. Patrick Toomey, who is running for re-election in that blue-leaning state.
Democratic aides, noting that there are 20 pending nominations waiting floor action, are hopeful there will be more confirmations after Waverly. They also said that Democrats cleared President George W. Bush’s nominees through September of the then-president’s final year in the White House.
“More than a year into the new Congress, the Republican leadership has allowed only 16 judges to be confirmed,” Sen. Patrick Leahy, the top Democrat on the Judiciary Committee complained last week.
Leahy’s staff said 68 nominees were confirmed in the last two years of Bush’s presidency when Democrats controlled the chamber. But top Republicans disputed the Democrats’ accounting and said in the end Obama is likely to get more judges confirmed that Bush.
“Mr. Crenshaw is President Obama’s 324th judicial nominee confirmed since he took office in 2009,” said Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, in a floor speech. “Throughout his entire presidency, the Senate confirmed 326 of President Bush’s judicial nominations.”
John Cornyn, the second-ranking Republican and member of the Judiciary Committee, said negotiations continue between the McConnell and Minority Leader Harry Reid over outstanding nominations, including six District Court judges for his home state of Texas who were recently nominated by Obama.
But he said the current, slower pace of confirmations is partly a result of the high number of judges Obama confirmed in the last session of Congress when Democrats controlled the Senate and unilaterally changed Senate rules, making in nearly impossible for Republicans to block judges.
“Part of is because the Democrats packed the courts with these lame-duck appointments during the nuclear option. So that is one reason why they got a lot more than they ordinarily would, and why it perhaps looks like there is less now,” Cornyn told CNN. “But I assume there are discussions going on between the leaders’ offices about the pace and the numbers.”
Garland returns to Capitol Hill Tuesday for a much-anticipated meeting with Grassley as well as two other GOP senators.
Grassley, who is running for re-election in what could be a tight race, initially signaled he might not meet with Garland but later said he would. The two will meet for breakfast at 8 a.m. in the exclusive Members’ Dining room in the Senate.
The meeting will be out of range of TV cameras in an area off limits to reporters.
Garland will also meet with Toomey and GOP Sen. Lisa Murkowski of Alaska.
On the floor Monday, Reid tied the slow action on district and circuit court nominees to the fate of Garland who most Republicans refuse outright to consider.
GOP senators argue whoever wins this year’s contentious presidential election should decide who fills the seat of staunch conservative Justice Antonin Scalia who died unexpectedly in February.
“The Republican leader and chairman of the Senate Judiciary Committee are leading an all-out assault on our nation’s courts by depriving them of qualified judges. Americans know of obstructionism of the Supreme Court nominee Merrick Garland,” Reid said. “That gridlock is extending to important lower court nominees also.”
Carl Tobias, a law professor at the University of Richmond School of Law, told CNN the GOP refusal to confirm lower court judges is “plumbing new depths in the confirmation wars, which needs to end for the good of the courts and good of the nation.”
“After all the judiciary is a coequal branch and the GOP has a constitutional duty to afford advice and consent and judicial resources, so the courts can discharge their constitutional duty to deliver justice,” he said.