WASHINGTON — Arkansas Court of Appeals Judge Denzil Price Marshall Jr. sailed through his confirmation hearing in February for a seat on the federal bench, basking in bipartisan praise.
The ranking Republican on the Senate Judiciary Committee went so far as to suggest the proceeding was merely a formality before Marshall could become a U.S. district judge for the Eastern District of Arkansas.
“This is just a process we have to go through,” said Republican Sen. Jeff Sessions of Alabama. That was underscored when the committee advanced Marshall’s nomination Feb. 11 on a unanimous voice vote, sending it to the full Senate for final approval.
So why, more than two months later, are Republican senators blocking confirmation for Marshall - and as many as 80 other nominees for positions in the judicial and executive branches?
The answer, according to Democratic Sen. Mark Pryor of Arkansas and other congressional observers, is partisan politics - aided and abetted by the arcane procedures of the Senate.
“There’s just no place for this in the Senate,” Pryor said. “There’s no place just to play partisan political games with these judicial appointments, especially if you have someone who is very well qualified and very uncontroversial, which we have in Price Marshall.”
Pryor made his comments to reporters Wednesday - one day after Republican Sen. Jon Kyl of Arizona objected to bringing Marshall’s nomination to the floor.
The tactics being used to delay these nominations are not new, and they’ve been employed in the past by both Democrats and Republicans, said David Davenport, a research fellow at the conservative Hoover Institution and a former law professor at Pepperdine University in Malibu, Calif.
“People say it’s dirty pool every time it’s done,” said Davenport, but these standoffs “are part of the checks and balances that the founders built into the Constitution.”
Pryor acknowledges that he helped to delay or derail some of George W. Bush’s appointees, but says the number of standoffs has escalated in recent years.
“The problem, unfortunately, now is a lot worse,” he said.
SECRET HOLDS
Senate procedures provide for various ways for the minority party to exercise a measure of power. One of those is an informal process that allows senators to secretly place a “hold” on bills or nominations - which is the case with Marshall.
A 2008 Congressional Research Service report explains that “holds are a long-standing custom of the Senate that enabled members to provide notice to their party leader of their intent to object on the floor to taking up or passing a measure or matter.”
Much of the Senate’s business is conducted by what is known as “unanimous consent,” but that requires agreement from all 100 senators. A hold can occur when a senator objects to a request for unanimous consent.
Historically, senators have used holds for various reasons - to block a bill or nominee they oppose, as a bargaining device, or as a delaying tactic. A hold essentially prevents consideration of an issue or nominee unless there is the 60-vote margin needed to cut off debate, just as with a filibuster.
On Tuesday, Democratic Sen. Claire McCaskill of Missouri took to the Senate floor to decry the current number of holds, saying some 80 nominations were being blocked.
“If a senator wanted to oppose somebody, no problem; if he or she wanted to hold somebody, that is their right as a senator,” she said. “But own it.”
If a senator objects to a nominee, she continued, “they should tell the public they have an objection and, frankly, they owe the public an explanation as to why.”
Also Tuesday, Sen. Sheldon Whitehouse, a Rhode Island Democrat, sought unanimous consent to bring up several pending judicial nominations, including Marshall, who he said had been “blockaded” and “filibustered” on the Senate floor.
Kyl objected to Whitehouse’s requests, including Marshall’s nomination - even though Kyl is a member of the Judiciary Committee that unanimously approved Marshall.
Kyl’s press secretary, Ryan Patmintra, later said the senator was objecting on behalf of all Republican senators because “we don’t know where the entire caucus is” in terms of support for each nominee.
FLOOR TIME
Patmintra also pointed out that Senate Majority Leader Harry Reid of Nevada could bring any nomination to the floor at any time.
As the Congressional Research Service report explained, it is ultimately up to the majority leader to decide how long a hold will last. Even without unanimous consent, the leader can call up a nomination despite a hold.
“That motion is subject to extended debate,” the report continues, “but no Senator can, under the practices of the Senate, prevent the majority leader from making that motion.”
It’s that potential of extended debate that complicates the situation, said Ian Millhiser, a policy analyst who follows judicial nominations for the Center for American Progress Action Fund, a liberal research and advocacy group. The organization released a report last week tracking the status of Obama’s appointments and nominations.
In the Senate, where debate is less limited than in the House, floor time is valuable, Millhiser said. That means the majority leader must make decisions about how to best use a finite amount of time. So if the leader must spend hours or days on every nomination, that results in less time for other issues such as financial regulation or health care.
The holds on nominees at the district court level, such as Marshall, which have traditionally not been contentious, “are very unusual,” Millhiser said.
Statistics from the Department of Justice show that, as of Thursday when the Senate approved an appellate court judge - Denny Chin, a U.S. District Judge in Manhattan, confirmed for a seat on the 2nd Circuit Court of Appeals - 21 of Obama’s 64 judicial nominees had been confirmed, or 32.8 percent.
At the same point in previous administrations, 45.5 percent of Bush’s judicial nominees had been confirmed, as had 60.3 percent of former President Bill Clinton’s nominees.
“Certainly, there were filibusters when Bush was making nominations, but not of the magnitude we have now,” Millhiser said. “What is different now is we see even unobjectionable nominees to courts of relatively low importance being objected to.”
Davenport, the Hoover Institution fellow, says the current standoff is sort of a Washington ritual. “What we’re seeing is quite natural and even the heated rhetoric is quite natural, I think,” he said. “The majority party gets to lead the agenda, but the minority party has its say. One of the ways they have their say is by delaying and pitching selected battles.”
Pryor said he would continue working within the framework of the Senate to get Marshall confirmed. Democrats would like to act on many of the pending nominations before they get to the one that promises to be the most difficult - a confirmation battle this summer over Obama’s nominee, yet to be named, to replace retiring Supreme Court Justice John Paul Stevens.
“We need to be fair about this. We need to look at their backgrounds, we need to be very serious about all of these judges’ backgrounds because these are lifetime appointments,” he said. “But at the same time, we need to make sure that the process works, and that we get excellent people on the bench, and that’s most true for the U.S. Supreme Court.”
Front Section, Pages 1 on 04/26/2010