The Senate’s ‘Dr. No’ delivers a surprise ‘yes

The judicial confirmation wars are clearly escalating when Sen. Tom Coburn (R-Okla.) calls for a halt to the carnage. Coburn, dubbed “Dr. No” for his unyielding opposition to many of his colleagues’ ideas, including judicial appointments, proclaimed this month that the confirmation wars must end. He said: “I think the very issue [of judicial selection] is what makes Americans sick of what we’re doing. It’s a tit for tat. We’ve got to get beyond that. The problems are too great for our country. What I do know is that presidents are entitled to their nominees.” The senator must now follow his words with actions, and both Democrats and Republicans must heed his admonitions.

Judges, litigants and attorneys have been laboring under a 10% vacancy rate on the federal bench since August 2009. This political logjam has seriously delayed appointments, left most nominees with their careers and personal lives on hold, prevented stellar prospects from considering judicial service and impeded swift and fair case resolution. It has also eroded public respect for the process and the Senate.

Coburn offered his thoughts at the Senate Judiciary Committee meeting this month to consider Arizona Supreme Court Justice Andrew D. Hurwitz’s nomination to the U.S. 9th Circuit Court of Appeals. That hearing started in typical fashion, with the chairman, Sen. Patrick Leahy (D-Vt.) and the ranking member, Sen. Charles Grassley (R-Iowa), exchanging pleasantries. Grassley then announced his intention to vote against Hurwitz. His “primary concern” was a 2002 law review article “embracing and celebrating the framework for Roe vs. Wade” that Hurwitz wrote. The senator also remarked that President Obama’s allegedly unconstitutional recess appointments of officials in January required him to apply a less deferential standard that Hurwitz could not satisfy.

As the hearing proceeded, Sen. Jon Kyl (R-Ariz.) affirmed his “enthusiastic support” and that ofSen. John McCain (R-Ariz.) for Hurwitz, the type of strong endorsement from home-state senators that typically precedes a unanimous committee vote. Kyl dismissed the relevance of Hurwitz’s possible personal support for Roe vs. Wade. “The real question is how has he comported himself in the place where you can really judge it, the Arizona Supreme Court.” Kyl declared his complete satisfaction with Hurwitz’s decade of performance on Arizona’s highest court, emphasizing his intelligence, qualifications, temperament and support by Arizonans. However, a unanimous committee vote was not to be.

Sen. Dianne Feinstein (D-Calif.) characterized Kyl’s avid defense of Hurwitz as “music to my ears.” She lauded Kyl for not permitting the article to outweigh the nominee’s lengthy excellent record, labeling the article a “subordinate issue.” Feinstein added: “ I don’t think there is a more qualified person for the 9th Circuit anywhere.”

Coburn then surprised his colleagues with observations and suggestions that were anything but typical. The senator lamented the incessant partisan disputes, the “gotcha” tactics used to oppose nominees like Hurwitz and the loss of civility. Coburn then pointed to a way forward. He stated that the GOP leadership has “advised that there should be no retribution for the recess appointments” and that the dispute over them should be resolved in court. He went on to say, “I think we need to build bridges instead of burn them, and I think we ought to move this nominee.”

Coburn also urged a return to the days before the administrations of PresidentsGeorge W. Bushand Obama when Democrats and Republicans cooperated. Senators used to expeditiously conduct ballots for large groups of well-qualified, noncontroversial district nominees, especially as they were about to go on recess. The Senate confirmed big District Court nominee packages even in the Bush administration, but this practice stopped in the Obama administration. GOP rejection of this tradition is animated by the hope that its presidential nominee will win in November and, thus, be able to appoint his own judges.

Following Coburn’s lead, senators may want to reinstate this tradition and exercise more deference to home-state colleagues and the president, who has rigorously consulted lawmakers and even nominated numerous candidates whom Republicans suggested.

Coburn acknowledged that Hurwitz perplexed him and that he was unsure how to vote. Yet Coburn ultimately agreed to give Hurwitz his vote, saying the president is entitled to his nominees and suggesting that nominees deserve up-or-down floor votes. The committee approved Hurwitz 13 to 5. Kyl then said the overwhelming vote would facilitate timely floor consideration and address the 9th Circuit’s desperate need to fill its four vacancies.

Coburn has identified and prescribed effective solutions for a grave problem in American governance: the confirmation wars that have left more than 80 federal judgeships empty and litigants waiting interminably for their day in court. The senator must strive to ensure that his constructive descriptions and suggestions are not merely a flash in the pan. The first test comes this week when Coburn votes on whether 23rd Judicial Circuit Judge Gina M. Groh, a nominee who secured unanimous Judiciary Committee approval, can receive a floor vote.

Carl Tobias is a professor of law at the University of Richmond.