Nomination and Confirmation Update

The Senate continues to chug through judicial nominations, but at a slower pace, I think, than earlier this year. Last week, they confirmed District Judge nominee was confirmed Michael Simon, by a 64-35 vote. That now leaves 89 remaining vacancies, down just a bit from the beginning of the year, when it was just over 100. I should note that Barack Obama has been doing quite a bit better at actually making nominations in the first place; there are now "only" 33 vacancies without a nominee.

Did I mention that it was a 64-35 vote? You may not think that's any big deal. You would be wrong.

This is the third closely contested District Court vote this year: Simon, 64-35; Chen, 55-42; McConnell, 50-44. I pulled up the 109th Congress for comparison -- that's 2005-2006, with Republicans in the majority and George W. Bush in the White House. There were five recorded votes on confirming District Judges in the 2005, and another 12 in 2006. Total votes against those nominees: zero. Zip. Nada. Every single one was unanimous.

Look, Republicans have every right to oppose (lifetime) District Judge appointments, whether on ideological or even just partisan grounds. But everyone should be aware that in this, as with so many other parts of the process, Republicans are breaking with norms and precedents. I've been pretty harsh in my criticisms of Barack Obama for moving slowly on nominations, but it's also true he's dealing with unprecedented obstruction: from holds, to filibusters, to foot-dragging at the committee level...even insisting on recorded votes (18 already this year, compared to 17 in all of 2005-2006) is a form of obstruction. If Republicans insist on obstructing, then Democrats should, in my view, feel free to fight back in turn by using the rules just as creatively and aggressively.

And for judges, they should do it now. Even if Barack Obama is re-elected, there's every possibility that he'll be confronted by a Republican Senate. And if that's the case, this is going to look like a picnic; it seems quite likely to me that many nominations, perhaps all of them (especially at the appellate level) just won't come to the floor, even if they have strong majorities.