- The Washington Times - Sunday, May 6, 2012

An aggressive White House drive to move stalled judicial nominees through the Senate is galvanizing activists on the left for an election-year fight to fill the bench with President Obama’s picks while Republicans are vowing to block what they view as Democratic overreach.

The president has invited 150 supporters from across the country concerned about the judicial vacancy rate to the White House on Monday for a strategy session with administration officials, according to a copy of the invitation obtained by The Washington Times.

In making the push just six months before voters go to the polls to decide whether Mr. Obama deserves a second term, Democrats acknowledge that they are disregarding the so-called Thurmond rule, an unwritten historical precedent that bars the confirmation of a president’s judicial appointees in the months leading up to the election.

The rule, which is informal and often ignored, originated with Sen. Strom Thurmond, a Republican from South Carolina who opposed President Johnson’s nomination of Justice Abe Fortas to the Supreme Court in June 1968.

In the invite, the White House accuses Republicans of subjecting consensus nominees to “unprecedented delays and filibusters.”

“Half of all Americans — over 130 million of us — live in judicial districts or circuits that have a vacancy that would be filled today if this obstruction … would end,” wrote Brad Jenkins, associate director of the White House Office of Public Engagement. “This unwarranted obstructionism … is detrimental to our courts and the lives of millions.”

In 37 cases, the courts have declared emergencies because of the lengths of vacancies and backlog of cases.

GOP: Blame Obama, not us

Republicans say the president has not made judicial nominations a priority, has been slow to nominate judges for the federal bench and is trying to play catch-up late in his first term. Some Democrats privately agree.

“It’s easy to call a summit and blame the Republicans to satisfy your base, but the White House is the only one to blame for their perceived lack of confirmations since the president hasn’t made nominations for almost 60 percent of the current judicial vacancies,” Sen. Chuck Grassley, the ranking Republican on the Judiciary Committee, said in an email.

Mr. Obama made two Supreme Court nominations during his first term, which sucked up a lot of the Senate’s time, Mr. Grassley said. “The truth of the matter is that when you compare President [George W.] Bush’s term when he made two Supreme Court nominations to President Obama’s term when he made two Supreme Court nominations, President Obama actually comes out better. When you play politics with judicial nominees, it’s hard to see the truth.”

The Senate has confirmed 142 of Mr. Obama’s judicial nominations, which Republicans note is substantially more than the 99 Bush nominees whom the Senate approved during Mr. Bush’s second term.

Politics or a real problem?

Monday’s strategy session comes on the heels of a March deal between Senate Democrats and Republicans to move 17 judicial nominations after Senate Majority Leader Harry Reid, Nevada Democrat, threatened to force Republicans to vote on back-to-back procedural votes on each appointee whose confirmation had been stuck for months.

The meeting will take place the same day the Senate is set to vote on three judges, the last beneficiaries of the deal.

Those nominations are: U.S. District Judge Jacqueline Nguyen to the 9th U.S. Circuit Court of Appeals, Kristine Gerhard Baker as U.S. District judge for the Eastern District of Arkansas and John Lee as U.S. District judge for the Northern District of Illinois.

Republicans point to Mr. Reid’s statement in December acknowledging that the Senate has “done a good job on nominations.”

“I’m not sure what they’ll complain about after an agreement that Sen. Reid said is ’a victory for our nation’s judicial system,’” a Senate GOP leadership aide told The Times. “And remember, after these next three, there will be less than 20 on the calendar, most of which only came out of the committee in the last month or so. The overwhelming majority of the vacancies aren’t even before the Senate.”

Mr. Reid’s office did not return a request for comment.

Democrats: It’s obstructionism

Democrats insist that Republicans could approve nominations easily if they wanted to. But a conservative minority in the Senate, they say, is blocking even consensus nominees with individual senators placing holds or threatening to filibuster just because they can.

Alliance for Justice President Nan Aron, a leader of the effort to fill the vacancies, said Republicans are making “silly” excuses.

“Republican senators’ response for every judicial nomination is to filibuster — even those nominees they support,” she said. “It’s unprecedented, really. In the past, parties might have filibustered nominees that are problematic, but over the past few years, it’s become the norm.”

In light of the “relentless GOP obstructionism,” she said, the Thurmond rule “should have absolutely no application.”

Republicans question the motivation behind the White House meeting, in the wake of the Senate deal to confirm more than a dozen judges, as well as the Supreme Court’s decision to review the constitutionality of the president’s signature 2010 health care law.

“This follows so closely after the finger-wagging in the court over Obamacare, it might be a larger strategy on the part of the Obama campaign to run against the courts as a way to energize the Democratic base, especially if the Supreme Court strikes down a major part of the health care law,” said Robert Alt, a legal specialist at the Heritage Foundation.

Hans von Spakovsky, a Republican election-law lawyer, urges Republican senators to stand firm in opposing any more of Mr. Obama’s judicial nominations, considering Mr. Obama’s decision to bypass the Senate and install three members of the National Labor Relations Board and a director for the controversial new Consumer Financial Protection Bureau a day after the Senate held a session, pushing the limits of his recess appointment powers.

Senators in both parties — including Democrats in 2007 and 2008 when Mr. Obama was in the Senate — argue that it takes a recess of at least three days before the president can use his appointment powers. Senate Republicans joined a lawsuit against Mr. Obama’s January appointments.

Mr. Spakovsky, whom Mr. Bush appointed to the Federal Election Commission during a Senate recess in early 2006 but two years later withdrew under pressure from Democrats, urged Republicans to block all nominations until Mr. Obama withdraws those disputed appointments.

“I, quite frankly, think Republicans could be much tougher on these confirmation votes — these are permanent lifetime appointments,” he said. “The president made four unconstitutional and illegal appointments back in January to the NLRB and the CFPB — they violated the ’advise and consent’ rule in the Senate. If I were in the Senate, I would filibuster every single nominee until he withdrew them.”

• Susan Crabtree can be reached at scrabtree@washingtontimes.com.

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