Senators' use of 'anonymous hold' contributes to backlog of stalled judicial nominations

By Amanda Becker
Monday, September 27, 2010

Three nominees for federal courts based in the District of Columbia were among the seven approved by the Senate Judiciary Committee on Thursday as part of its final push to send judicial nominations to the Senate floor before Congress recesses until after the election.

But whether senators will have an opportunity to vote on Federal Circuit nominee Kathleen O'Malley and District Court nominees Beryl Howell and Robert Wilkins depends largely on whether any single lawmaker opts to utilize an anonymous procedural tactic that has stalled the confirmation process and driven the number of vacancies on the federal bench to what experts say is an untenable level.

"Holding up the appointment of scores of nominees is unacceptable," said American Bar Association President Stephen N. Zack of the 23 nominations that have cleared the Judiciary Committee but stalled before the full Senate. "These nominees deserve an up or down vote so they can get to work and keep our courts functioning."

There are currently 103 open seats in federal district and appellate courts, including 48 on courts with such long-term vacancies or high filing activity that the federal judiciary itself has placed them on a list of judicial emergencies. Fifteen of these vacancies are in federal courts in the District, Maryland or Virginia. Federal District Courts in Maryland and Virginia and the U.S. Court of Appeals in Richmond (4th Circuit) each have a vacancy deemed an emergency by the Administrative Office of the U.S. Courts, which tracks such statistics.

Legal experts warn that if the vacancy level continues to hover around 10 percent, which it has for more than a year, it could delay civil trial dockets and discourage qualified candidates from coming forward. In addition to the current vacancies, another 20 judges have announced plans to retire soon.

"The workload increases for the judges who are already there; not only is the burden greater, you can't devote the time as a judge to the issues before you that sometimes these cases need," said American Constitution Society board member William Marshall, who teaches constitutional law at the University of North Carolina.

Those familiar with the judicial nomination and confirmation process say there are multiple reasons why fewer judges were confirmed during President Obama's first 20 months in office than during any administration since Richard Nixon's, according to Alliance for Justice statistics. Nearly all cite a manipulation of Senate rules called a secret hold, which allows a single lawmaker to block the consideration of judicial nominees. There must be unanimous consent among senators before the Senate can consider matters on its calendar, thus an objection lodged anonymously with party leadership can be an effective delay tactic.

"A hold is a threat to filibuster, it's a statement to your leader that says when this nomination comes to the floor, I'm going to object," said congressional scholar Sarah Binder at the Brookings Institution.

As a result, even uncontroversial nominees, who often have the support of home-state lawmakers from both political parties, languish in the Senate. North Carolina Judge Albert Diaz has awaited confirmation longer than any nominee. He was nominated to fill a vacancy on the federal appellate court in Richmond back in November and was approved by the Senate Judiciary Committee in January. Seven months later, Sen. Richard Burr (R-N.C.) said in a statement he was disappointed colleagues had not "put political gamesmanship aside" to confirm Diaz.

"Many of the judicial nominees enjoy bipartisan support, so what we are seeing is a political maneuvering for the purpose of holding seats open," said Nan Aron of the Alliance for Justice.

Senators who place holds are supposed to publicly disclose that action within six legislative days, but Binder said few do so and it is difficult to enforce. Sens. Ron Wyden (D-Ore.), Charles E. Grassley (R-Iowa) and Claire McCaskill (D-Mo.) have authored bipartisan legislation that would shorten that window to one legislative day. Though McCaskill sent party leadership a letter supporting an end to secret holds that was signed by more than 60 senators and Sen. Harry M. Reid (D-Nev.) pledged that it would be one of the first matters called up for a vote in September, no action has yet been taken.

In the meantime, nominees to area federal courts, including Diaz, O'Malley, Howell, Venable's Wilkins, Trout Cacheris's Amy Berman Jackson, trial court judge James Boasberg and WilmerHale's Edward DuMont, will await their day before the Senate.

"The current gridlock discourages anyone from subjecting themselves to the judicial nomination process," Zack said.

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