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Nov. 29 — The Obama-appointed judge who blocked one of the president's key labor initiatives has a history of supporting the Republican Party and landed on the bench with help from a pair of GOP senators.
Judge Amos Mazzant put the Labor Department’s overtime rule on hold Nov. 22, just days before some 4 million workers were set to become newly eligible for time-and-a-half pay. The ruling was a surprise to some critics of the rule, who thought they’d drawn a difficult hand when the lawsuit was assigned to an appointee of President Barack Obama.
It turns out that Mazzant previously ran as a Republican for a state judge post and donated to George W. Bush’s re-election campaign in 2004. He was appointed to the U.S. District Court for the Eastern District of Texas after getting the nod from the state’s two Republican Senators—John Cornyn and Ted Cruz—through a “blue slip” process that gives home state lawmakers something close to veto power over judicial nominees.
“Of course, home state senators are consulted by the White House on whom they choose to nominate and whether they’re acceptable to the home state senators,” Cornyn told Bloomberg BNA Nov. 29. “He and basically every federal judge nominated by President Obama went through that process.”
Mazzant’s appointment by the Obama administration doesn’t mean he was expected to be a rubber stamp for the president’s agenda. Still, the White House may be second-guessing the century-old Senate courtesy arrangement in which home state lawmakers can disapprove a judiciary nominee.
A White House spokesman didn’t respond to Bloomberg BNA’s request for comment Nov. 29.
Mazzant was also screened by the Federal Judicial Evaluation Committee, a 35-member bipartisan group of Texas lawyers established by Cornyn and Cruz in 2013 to identify potential judicial and U.S. attorney candidates in Texas.
The 2014 appointment of Mazzant, which came without objections during the Senate confirmation process, was likely packaged as part of a deal to lessen the backlog of federal judicial vacancies in the state, two scholars who follow presidential judicial appointments told Bloomberg BNA.
“The White House may have felt that there are just so many vacancies in Texas and we need to get them some help,” Carl Tobias, a University of Richmond law professor who tracks nominations, told Bloomberg BNA Nov. 28. “People with magistrate experience have been nominated for that position and I’m not surprised by that, and the White House may have also been beaten down and frustrated with six years of non-cooperation and wanted to get the vacancy filled.”
Mazzant was one of three judges appointed for seats in Texas. The other two were Robert Lee Pitman, whom Obama previously appointed to serve as U.S. attorney for the Western District of Texas in 2011, and Robert Williams Schroeder III, who was a partner at the law firm Patton, Tidwell, Schroeder & Culbertson, LLP after serving as counsel in the Clinton administration.
Tobias added that party affiliation isn’t usually a big factor in how presidents vet judicial nominees, even though Mazzant disclosed his Republican run for the state judgeship in a questionnaire submitted to the Judiciary Committee.
“They’re not vetted for ideology” but for “who is competent and can move the cases,” he said.
There may have been extra urgency to getting vacant seats filled in Texas. Tobias dubbed Texas as “ground zero” of the nation’s federal judicial vacancy problem, citing more than a dozen openings, as well as backlogs of cases and heavy workloads for sitting judges. He said Obama made it a policy not to name an appointee “unless there was a blue slip from both senators.”
The blue slip process has varied over the years since it was established in 1917, but it generally gives senators the power to help select candidates for judicial vacancies in their home states. The process is named for the blue-colored letters the Judiciary Committee sends to home state senators, asking them to weigh in on a nominee.
“I think it’s sort of Senate historic and cultural prerogative,” Sen. Dianne Feinstein (D-Calif.) told Bloomberg BNA of the process Nov. 29. Feinstein will be the committee’s ranking member in the next Congress.
If a home state lawmaker sends the letter back with a disapproval, or doesn’t return the slip at all, that’s meant in recent years that the nomination isn’t likely to move forward. This has been the case, even when both home state senators are from a different party than the president.
“If you get blue-slipped, it’s a problem,” Feinstein said.
The process has had mixed results, and its success has been shaped by the presidential administration at the time. Sen. Patrick Leahy (D-Vt.), ranking member on the Judiciary Committee, told Bloomberg BNA Nov. 29 that “it’s a different set of rules, depending on who’s president.”
“I think it’s worked well, but I’ve noticed that the Republicans are very flexible on it if they have the presidency. If the Democrats have the presidency, Republicans like it,” Leahy said. “Orrin Hatch killed 70 to 75 of Bill Clinton’s judges by refusing to have a hearing. We moved judges in the last two years of George Bush’s term.”
While legal proceedings are based on interpretations of the law, federal judges don’t always rule in favor of the administration that appointed them to the post, Sheldon Goldman, a professor at the University of Massachusetts at Amherst and a scholar of federal judicial selections, told Bloomberg BNA Nov. 28.
“I’m not surprised that an Obama appointee would make such a decision. The truth of the matter is that, in general, judges who are appointed by a president, even within the same party, they don’t rule in every case the way the president wants,” Goldman said. “Even Supreme Court Justice Scalia for the large part was very conservative, but he did hand down decisions and voted in cases that were more liberal.”
Goldman cautioned that judicial appointees have to walk a line of fairness, especially when it goes against the administration that appointed them to the lifelong post.
“The point is that generally people who affiliate with a political party tend to share the same ideology and perspectives,” he said. “When it comes to being a judge and making decisions, the judge would certainly try to not make the decision overtly political and the judge will be concerned with how is this going to be seen. They have to be professional and act professional.”
Still, Cornyn Nov. 29 lauded Mazzant’s decision. The Senate majority whip seemed to feel he played some part in the ruling, given his role in the nomination process.
“I understand he made a decision in a big case, but I’m sure it’s just the beginning—it’s not the end,” Cornyn said. “I think he was a good choice.”
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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