Republican senators consistently accuse President Barack Obama of refusing to follow the law and exceeding his constitutional powers. Yet they’ve been unwilling to draw the line when it comes to giving Obama’s judicial nominees lifetime appointments to the federal bench.
So far in 2016, the Republican-led Senate has confirmed nine Obama judges. And that number could continue to climb when the Senate returns from recess in September as several GOP senators press for action on other Obama nominees.
The Senate Judiciary Committee on Thursday approved three more Obama judicial nominees, moving them a step closer to lifetime appointments. That makes 27 judicial nominees awaiting action on the Senate floor.
While the most high-profile nomination—Obama’s pick of Merrick Garland for the Supreme Court—languishes without a hearing, the Senate did confirm two other nonjudicial, albeit controversial nominees this year: Carla Hayden won approval to lead the Library of Congress on Wednesday and John King was confirmed as education secretary in March.
Sen. Roy Blunt, R-Mo., pushed for Hayden’s confirmation for a 10-year term at the Library of Congress despite her history of radical left-wing activism, which triggered opposition from Concerned Women for America and Heritage Action for America. She’ll hold the job for nearly a decade after Obama leaves office.
Ten years isn’t nearly as long as a lifetime, though. And because federal judges serve lifetime appointments, Obama’s judges are likely to leave their mark long after he departs the White House.
That concern—coupled with complaints about Obama’s disregard for the Constitution and rule of law—has prompted some Republican senators like Dan Sullivan of Alaska to oppose the president’s picks.
“With regards to judges, these are lifetime appointments, which Sen. Sullivan considers very carefully,” his spokesman told The Daily Signal. “He doesn’t want the courts packed with nominees from a president who does not understand the rule of law and regularly engages in executive branch overreach with no regard for the Constitution or the separation of powers.”
Only two of Obama’s nine judicial nominees have faced significant opposition from Republicans on the Senate floor this year. Wilhelmina Wright received 36 no votes in January and Paula Xinis had 34 no votes in May. Both are now U.S. district judges.
Even before Supreme Court Justice Antonin Scalia’s death triggered a fight over his vacancy, Heritage Action, a sister organization of The Heritage Foundation, urged the Senate in January to halt all confirmations of Obama judges.
“President Obama has repeatedly ignored the separation of powers over the past seven years,” Heritage Action CEO Michael A. Needham said at the time. “Given the administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm any more of the president’s judicial nominees.”
While many Republicans agree, the Senate Judiciary Committee has slowly and methodically processed some nominees.
Because federal judges serve lifetime appointments, Obama’s judges are likely to leave their mark long after he departs the White House.
At a hearing for two Obama judicial nominees earlier this week, Judiciary Chairman Chuck Grassley, R-Iowa, boasted that he’s held more hearings on Obama nominees than the former Democrat chairman, Sen. Pat Leahy of Vermont, did for President George W. Bush’s nominees in the 110th Congress (49 compared to 47).
Grassley, who is facing re-election in Iowa this year, has fended off attacks from his Democrat opponent by stressing progress on Obama’s judges. “To say that President Obama hasn’t been treated fairly during his presidency isn’t based in reality,” a Judiciary Committee spokeswoman said in May.
Grassley’s decision to keep moving nominees through the Judiciary Committee runs counter to the senator’s complaints that “Obama has exceeded his constitutional powers and failed to uphold the law.” Despite this critique, Grassley has played an active role in cutting deals and keeping the Senate’s executive calendar stocked with nominations.
In December, Grassley brokered a deal between Republican and Democrat leaders for two Iowa judges to get Senate floor votes in exchange for three of Obama’s liberal judicial nominees. The Iowa nominees, Leonard Strand and Rebecca Ebinger, were unanimously confirmed in February. The three liberal nominees included Luis Restrepo of Pennsylvania, John Vazquez of New Jersey, and Wilhelmina Wright of Minnesota. They were confirmed in January, and only Wright faced notable GOP opposition.
Grassley’s spokeswoman did not respond to The Daily Signal’s request for comment.
Two of those judges (Crenshaw and Rossiter) had their home-state Republicans pushing for action. Facing pressure from his own conference, Senate Majority Leader Mitch McConnell, R-Ky., scheduled floor votes—despite his own misgivings about Obama. McConnell, for instance, led the Senate’s rebuke of Obama’s executive actions on immigration by citing his disregard for the Constitution.
“Whether we’re Republicans or Democrats, this kind of partisan overreach should worry all of us—no matter who is in the White House,” McConnell said in a Senate speech in April. “Because not only is the president’s blatant refusal to follow the law an extraordinary power grab, it’s a direct challenge to Congress’s constitutional authority—and a direct attack on our constitutional order.”
Since delivering those remarks, however, McConnell has allowed votes on four Obama judges who won confirmation to lifetime appointments. He’s also voted for all nine Obama judges, one of only three GOP senators to do so. (Sens. Susan Collins of Maine and Orrin Hatch of Utah are the other two.)
According to a report in Politico, several more confirmation votes could follow if Sens. John Cornyn, R-Texas; Pat Toomey, R-Pa.; and Hatch are able to convince McConnell to schedule votes on their home-state nominees.
The one thing that could stop them is a longstanding Senate tradition of pausing on judicial confirmations as the president’s term nears its end. Known as the Thurmond-Leahy rule (after former South Carolina Sen. Strom Thurmond and Leahy), it is an unwritten rule that typically kicks in around summer recess. That starts Friday when the Senate adjourns until September.
If the Senate were to take no further action during the next six months of Obama’s presidency, he will have secured confirmation of 329 judges. By comparison, Bush had 312 confirmed at this point in his second term.
Kyle Stewart contributed to this report.