December 29, 2013
WASHINGTON — Recent Senate battles over presidential nominations might seem too “inside baseball,” but all that contentious partisan wrangling could affect who becomes Nebraska's next federal judge and when that person is able to don the robe.
U.S. District Judge Joseph Bataillon has announced his intention to take senior status in October 2014, a move that will create a vacancy on the bench.
Although Democrats control the White House, and both of Nebraska's senators — Mike Johanns and Deb Fischer — are Republicans, home-state senators generally receive great deference in the selection of district judges.
In the Senate, both senators from a state traditionally must provide their assent in the form of a “blue slip” in order for a nominee to move forward.
That's why Johanns and Fischer have been taking applications from interested Nebraskans. They plan to continue doing so until Jan. 10 before reviewing the field of would-be jurists and making a recommendation to the White House. Forms are available on Johanns' official website.
In the meantime, however, the Senate confirmation process has deteriorated into an increasingly nasty, bogged-down affair.
Citing frustration with GOP filibusters, Democrats triggered what was dubbed the “nuclear option” and began confirming presidential appointments by simple majority.
Republicans have responded by using other procedural techniques still available to them in an effort to delay nominations for as long as possible.
Fischer and Johanns both said they will continue to work together on an open and fair process for selecting Bataillon's successor in a timely manner. They noted that Bataillon isn't taking senior status for many months.
Still, a clogged confirmation pipeline could delay when Nebraska's judge gets confirmed.
A new wrinkle popped up recently when Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, signaled he could kill the blue-slip privilege.
Senate Republicans used procedural tactics earlier this month to delay the committee from convening a confirmation hearing on five district court nominees, prompting Leahy to issue a statement blasting their actions as “consistent with the obstruction we have witnessed over the last five years, which has led to record high vacancies in federal courts throughout the country.”
On a previous occasion, he noted, Republicans had prevented the committee from holding an executive business meeting to consider other nominees.
“If this obstruction continues with respect to judicial nominees, I will be forced to reconsider long-held policies that have upheld the rights of the minority party in this process,” Leahy said.
Republican Sen. Chuck Grassley of Iowa responded with his own statement disputing the suggestion that Republicans have been overzealous in blocking nominations and blaming Democrats for starting this fight.
“There's no doubt that after the Democrats broke the rules to change the rules, it's going to be harder to get things done,” Grassley said. “There is only one party that voted for the irresponsible rules change. And the fact of the matter is that given the atmosphere the Democrats created by invoking the nuclear option, nominations are going to be given added scrutiny.”
If Leahy were to eliminate the blue-slip privilege and other levers by which Republicans can delay nominations, it would theoretically speed up the process for selecting Nebraska's next federal judge.
But it also could change the person who is selected, because Johanns and Fischer would have less influence.
“What that means is Sen. Fischer and I would have no voice whatsoever,” Johanns said of eliminating the blue slip. “President Obama would nominate the person he wants. That person would go to the Democrat-controlled Senate, where they would be confirmed by a majority vote.”
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