Nomination delaying tactic irks senators

Brown joins push to end ‘secret holds’

Judge Audrey Fleissig waited months to win approval. Judge Audrey Fleissig waited months to win approval.
By Mark Arsenault
Globe Staff / June 22, 2010

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WASHINGTON — It seemed the most unremarkable of votes. By a tally of 90 to 0, the US Senate recently approved President Obama’s nomination of a Missouri magistrate judge, Audrey Fleissig, to the federal district bench.

To win approval, however, Fleissig had to overcome months of delays secretly engineered by Republicans. Even Senator Claire McCaskill, the Missouri Democrat who recommended Fleissig, says she has no idea which of her GOP colleagues held up the vote.

Now the fallout over the four-month wait for Fleissig’s approval — and other nominees’ similar long waits, all of which create extended vacancies — has spawned action. McCaskill has persuaded at least 65 senators to sign a petition calling for the end of a practice that allows any single senator to hold up bills or nominations anonymously.

Senator Scott Brown of Massachusetts is one of nine Republicans to join the mostly Democratic group.

“When a member of the Senate wish es to hold legislation or a nomination, that senator owes to this body and, more importantly, to the American public a full explanation,’’ the petition reads.

Brown’s office declined to comment further, saying the petition speaks for itself.

Tomorrow, the Senate Rules Committee will try to push the issue ahead by taking testimony on the anonymous objections, called “secret holds.’’

About 100 of the 876 federal judgeships are vacant, according to the Administrative Office for the US Courts. That is a significant increase over the 59 that were vacant shortly after Obama took office last year. At a similar point in the presidency of Republican George W. Bush, with Democrats controlling the Senate, the courts had 89 vacancies.

Vacancies can lead to case backlogs and longer wait times for trials and appeals, usually on the civil docket because criminal cases take priority, said Carl Tobias, a professor at the University of Richmond School of Law.

There is one district judge vacancy in Massachusetts. Obama on April 28 nominated Denise Casper, deputy district attorney for the Middlesex district attorney’s office, to fill the post. Her nomination has not yet been reviewed in committee.

Members of both parties have used parliamentary procedures in recent years to hold up nominations. But congressional records show an escalation in the first 18 months of the Obama administration.

Obama’s nominees for federal circuit judges are waiting an average of 116 days for confirmation after winning committee approval, more than four times as long as those during a similar period of Bush’s presidency.

The wait for district court judges — the category Fleissig belongs to — is only somewhat better. Obama’s nominees take 58 days to be approved, compared with 25 days under Bush, according to congressional records.

Republicans say claims of obstructionism are overblown, that judges are getting confirmed, and that Obama’s judicial nominees have moved through the first step of the confirmation process — a hearing before the Senate Judiciary Committee — much faster than Bush nominees. In the first two years of Bush’s first term, his circuit court nominees waited about 180 days for a committee hearing. Obama nominees wait about 50 days.

Overall, the full confirmation process for Obama nominees has been about a month longer.

“It’s got to reflect the ability of the Republicans to slow things down even though they’re not the party of the president,’’ said Russell Wheeler, who tracks judicial nominations at The Bookings Institution.

Lawmakers have tried periodically in the past to change their own policy on secret holds, said Sarah Binder, a George Washington University professor. In 2007, the Senate decided that members must file notice of an objection in the congressional record within six days, but the requirement has had little effect. “There’s no enforcement mechanism,’’ she said.

Senator Richard Shelby, Republican of Alabama, held up more than 70 Obama administration appointees earlier this year to gain leverage in a dispute over defense contracts in his home state. He lifted most of the holds once the issue was publicized.

More than 25 Obama judicial nominations, already approved by the Judiciary Committee, are waiting confirmation votes. At least 17 sailed through committee hearings with no opposition, as did Fleissig, a former US attorney with nine years of experience as a federal magistrate judge.

“If they’ve gotten out of the committee unanimously, what’s the problem?’’ said Patrick Leahy, Democrat of Vermont and the Judiciary Committee chairman.

Democrats cite the cases of two widely supported North Carolina judges nominated by Obama in November for seats on the US Court of Appeals for the Fourth Circuit. The Judiciary Committee approved Albert Diaz and James Wynn by bipartisan votes of 19 to 0 and 18 to 1, respectively, yet both are still waiting for a confirmation vote on the Senate floor.

Senator Sheldon Whitehouse, Democrat of Rhode Island, tried to move the nominations to a vote in April, but Senator Jon Kyl, Republican of Arizona, objected, saying he wanted to allow Senate leadership from both parties more time to negotiate dates for confirmation votes on other judges. Whitehouse tried to move a few more names, but all were blocked. Kyl’s spokesman said the senator, who holds a party leadership post as Republican whip, stopped the nominees on behalf of the Republican conference out of respect for the objection of some other senator.

Earlier this month, Senator Jeff Sessions, an Alabama Republican and ranking minority member on the Judiciary Committee, took issue with Democratic grievances, saying half of the vacancies don’t yet have nominees.

As of June 10, Obama had submitted 72 district and circuit nominees, according to Wheeler, of Brookings. By that point in his first term, Bush had nominated 103. The pace of Obama’s nominations has increased this year. A White House spokesman declined to comment.

Mark Arsenault can be reached at