Senate stalling on judges is like an old family feud

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Judge James Wynn of North Carolina, President Obama’s nominee for the U.S. 4th Circuit Court of Appeals, looked to be a safe bet for an easy Senate confirmation. He is a former Navy lawyer and a well-regarded state appellate judge with a moderate record and “well-qualified” rating from the American Bar Assn.

Then again, the same could have been said of Wynn in 1999 when President Clinton nominated him to the 4th Circuit. He was blocked then by Republican Sen. Jesse Helms, who blocked all of Clinton’s North Carolina nominees.

After Obama selected Wynn last year, he was approved on an 18-1 vote by the Senate Judiciary Committee. He had the backing of the state’s two senators, Republican Richard M. Burr and Democrat Kay Hagan. But two weeks ago, Senate Republican Leader Mitch McConnell of Kentucky blocked Wynn from getting a vote on the Senate floor.

The GOP leader had no objection to Wynn. Instead, he said, he was getting back at Democrats who had blocked President George W. Bush’s nominees to the same court. “My perspective on the 4th Circuit covers a little longer period of time,” McConnell said.

The Senate’s dispute over judicial nominees resembles a family feud that stretches over several generations. Judges are being opposed not because of their records, but because of what happened several years earlier to other nominees. Use of the filibuster rule, which the GOP had insisted was unconstitutional several years ago, has become a routine stalling tactic.

If confirmed, Wynn would fill a North Carolina seat on the 4th Circuit that has been vacant since 1994.

“This is nothing but partisan gamesmanship,” said Burley Mitchell, former chief justice of the North Carolina Supreme Court. “I’ve known Wynn for years, and we served together for a time on the court. He is a superior person, and a good, middle-of-the-road judge.”

This week, the Senate is expected to confirm Elena Kagan, Obama’s second nominee to the Supreme Court. Her relatively swift approval, like that of Justice Sonia Sotomayor last year, has served to obscure the Senate’s breakdown over nominees to the lower federal courts.

Since Obama took office, 134 seats have come open in the federal courts, and he has succeeded in filling only 36 of them, despite a solid Democratic majority in the Senate.

Bush did better during his first 18 months in office. By July 2002, he had won confirmation for 61 of his judges, even though he faced an evenly divided Senate.

As with most family feuds, there is fierce disagreement about who is to blame and who started it.

The Democrats say they are victims of unfair tactics. “No one should be confused: The current obstruction and stalling by Senate Republicans is unprecedented,” said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee. He said McConnell is objecting to holding votes on well-qualified, noncontroversial nominees who have the support of their home-state Republicans.

By objecting, McConnell leaves Senate Majority Leader Harry Reid of Nevada with the choice of scheduling a so-called cloture vote. Under the Constitution, judges need only a majority vote of the Senate to be confirmed. But under the Senate’s rules, it takes 60 votes to close off debate. And the rules say a successful cloture vote is followed by 30 hours of debate. Because Reid is reluctant to devote long hours of the Senate’s time to debating a lower court judge, McConnell’s objection serves to prevent a confirmation vote.

For their part, the Republicans say the Democrats played unfairly when Bush was in the White House. They say they are reluctant to move quickly now to fill court seats that are vacant only because the Democrats refused to approve qualified Bush nominees for those seats.

They also recall how the Democrats used the filibuster to block the Republican majority from sending Washington lawyer Miguel Estrada to the U.S. appeals court in Washington. Had he been confirmed in 2003, Estrada might have been the first Latino chosen for the Supreme Court, an honor that instead went last year to Sotomayor.

The dispute over the North Carolina seat was once described by a White House lawyer as being “like the Hatfields and McCoys.” In 1991, at the urging of Helms, President George H.W. Bush chose Judge Terrence Boyle for the 4th Circuit, which is based in Richmond, Va. Boyle had a reputation as a conservative, and the Democrats did not confirm him.

When Clinton became president, Helms decided to block his nominees as payback. Clinton tried four nominees, including Wynn. If he had been confirmed, he would have been the first African American appointee to the circuit. When George W. Bush took office in 2001, he chose Boyle for the 4th Circuit. Again, the Democrats refused to confirm him. In 2007, Bush gave up and nominated Judge Robert Conrad from Charlotte.

“Judge Conrad could not even get as much as a hearing,” McConnell complained on the Senate floor recently. He also noted that two of Obama’s nominees were confirmed for other spots on the 4th Circuit.

The Democrats say they will try again in the fall to hold a vote on Wynn and two dozen other stalled nominees.