On Confirming Judges, Senate Just Says No

      President Obama made history this month [Sept. 7] by nominating a Washington lawyer, Abid Riaz Qureshi, to be the first Muslim ever to have a lifetime appointment to a federal court. But Qureshi is unlikely to win Senate confirmation for the post this year — not just because of his religion but more fundamentally because of unprecedented obstructionism from Senate Republicans on nominations to the federal bench.
      The Senate’s Republican leadership is now in its seventh month of refusing to convene a hearing on Obama’s nomination of the veteran federal appeals court judge Merrick Garland to the current vacancy on the Supreme Court. But the GOP’s refusal to consider Obama’s judicial nominees goes much further than that.
      Even as unfilled judicial vacancies have more than doubled over the past two years, Senate Majority Leader Mitch McConnell has now all but shut down consideration of any of Obama’s judicial nominees. The 90 vacancies include 34 that are characterized as “judicial emergencies” based on caseload figures.
      The policy extends to noncontroversial judicial nominees for U.S. district courts even when supported by home-state Republican senators, according to Glenn Sugameli, who has been tracking federal court nominations since 2001 on a website now called JudgingtheEnvironment.org. Sugameli, who now works as a staff attorney for Defenders of Wildlife, calls the obstruction “unprecedented, unjustifiable, and harmful to businesses and individuals for whom justice delayed is justice denied.”
      McConnell announced the policy of refusing to consider Obama’s Supreme Court nominee on the very day of Justice Antonin Scalia’s death [Feb. 13] and reaffirmed it after Obama chose Garland for the seat a month later [March 16]. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. Senate Republicans have stuck to the policy despite accurate criticism from Obama, Senate Democrats, and many court watchers that it has no basis in the Constitution or historical practice.
      Sheldon Goldman, a political scientist at the University of Massachusetts-Amherst and a longtime expert on judicial nominations and confirmations, agrees that the broader inaction on Obama nominees has no historical precedent. The record of the current Senate over the past two years is “the worst in American history in terms of obstruction and delay.”
      Admittedly, tit for tat has been the name of the game in judicial politics as far back as the 1980s with Republican Ronald Reagan in the White House and Democrats controlling the Senate for most of the time. President George W. Bush included John G. Roberts Jr. in his first batch of 11 nominees for federal appeals courts in May 2001, but Roberts won confirmation in 2003 only after Republicans gained control of the Senate. All of the others also eventually won confirmation except Miguel Estrada, a Washington lawyer, whose nomination was filibustered by Senate Democrats while in the minority.
      McConnell defends the Senate’s current record by noting that the Senate has confirmed a few more Obama judges, 329 in all, than it did for Bush in his eight years: 326. Sugameli says the comparison is misleading because of the larger number of vacancies in the Obama years.
      Curt Levey, a conservative veteran of the judicial wars as president of the Committee for Justice, agrees with McConnell. “The bottom line is the total number of confirmations,” he says even as he acknowledges that statistics can be “isolated to show whatever you want.” Levey adds that Republicans may be exacting revenge for the Democrats’ decision in the previous Congress while in the majority to rule out the use of the filibuster on judicial nominations except for the Supreme Court.
      Qureshi’s nomination with only five months left in Obama’s second term would have been problematic even under normal circumstances. Senators from the opposition party often try to slow down action on judicial confirmations in the final months of a president’s term.
      Born in Pakistan, Qureshi graduated with honors from Cornell University and Harvard Law School after coming to the United States with his family. He now heads the global pro bono committee of the international law firm Latham & Watkins. In announcing his nomination for the federal district court in the District of Columbia, the White House made no mention of Qureshi’s religion, but his background promptly prompted divergent reactions, including anti-Muslim rants on conservative web sites.
      Muslim advocacy groups applauded the nomination. Farhana Khera, executive director of Muslim Advocates, called Qureshi “an exceptional nominee.” Qureshi twice worked pro bono on civil rights cases for the group. Nan Aron, president of the liberal Alliance for Justice, cited the nomination as further evidence of Obama’s practice of making diversity a “centerpiece” of his judicial appointments.
      From the opposite perspective, conservative web sites criticized the nomination. In posting the story on Twitter, Breitbart News added this as a tweet: “Pack it up, folks. Fun country while it lasted.” Mad World News reported that Qureshi has “an extensive record of prejudicially defending Muslim rights” — whatever the adverb may mean — and accused him of unspecified “links” to the Council on American Islamic Relations, the Islamic Society of North America, and Saudi government officials.
      Meanwhile, Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to “do its job.” Unfortunately for the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.