Conservative Ex-Judge Urges Vote on Appellate Nominee

A prominent former U.S. appeals court judge added his voice to those calling for the Senate to proceed to an up-or-down vote and confirm Magistrate Judge Robert Bacharach to the Tenth U.S. Circuit Court of Appeals.

Former Tenth Circuit Judge Michael McConnell, a constitutional scholar and conservative, told the Salt Lake (Utah) Tribune that he hoped the Senate would make an exception from a current freeze imposed by Republicans on confirming high-level judicial nominees. The Republicans have invoked a loose custom called the “Thurmond Rule” (see Gavel Grab).

McConnell, director of the Stanford Constitutional Law Center, said an exception to the late presidential election year freeze typically is made for nominees with “an unusual degree of unanimous support.”

“Judge Bacharach has such strong support and such a good reputation across the spectrum that I am hoping that he will be the exception that does get confirmed, even in an election year,” he said. “But Washington is a pretty political and partisan place these days, so who knows?”

The extent of political partisanship played on judicial nominations was reflected in a NPR blog post by Nina Totenberg, entitled “Obama’s Judicial Nominees Face Slowed Confirmation Process.”

“We are all used to judicial nomination fights, but what has been remarkable in the Obama administration has been the molasses-like confirmation process for noncontroversial nominees, especially federal district court nominees,” Totenberg wrote.

During President Barack Obama’s term, there have been 21 instances in which majority Democrats had to file a cloture petition, a maneuver to break a filibuster, in order to move to up-or-down votes on 21 district court nominees. Each was ultimately confirmed. That compared to dramatically far fewer stalls applied to district court nominees in the administrations of Presidents Bill Clinton and George W. Bush, with only one cloture petition filed in each.

Twenty-one federal judicial nominees are pending before the Senate, including 17 for district court seats. Today, the Senate was scheduled to consider a cloture petition tied to voting on the nomination of Michael Shipp, a federal magistrate judge in New Jersey,  for a district judgeship.

In a sidebar, the Salt Lake Tribune quoted Glenn Sugameli, an attorney and judicial analyst for Defenders of Wildlife, as saying it would be simple for the Senate to act quickly on the dozen or so federal judicial nominees who have won unanimous approval by the Senate Judiciary Committee.

“There are plenty of examples in the past when there were votes on a bunch of people at the same time,” he said.




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