Senate Inches Forward to Consider Two Judicial Nominees

By Nancy Ognanovich

June 24 — Months of wrangling over President Barack Obama's judicial picks might result in two nominees being confirmed soon, while leaving a large backlog until after the November election.

Senate Majority Leader Mitch McConnell (R-Ky.) said he and Minority Leader Harry Reid (D-Nev.) agreed the chamber will consider by early July one federal district court nominee favored by Republican senators, Robert Rossiter, and one recommended by Democrats, Brian Martinotti.

The Senate will vote June 27 on the nomination of Rossiter to serve as a judge for the District of Nebraska and then turn July 6 to the nomination of Martinotti to serve in the District of New Jersey. Both have been awaiting confirmation since being reported from committee last October.

Those actions will keep the pace McConnell set of approving an average of one federal district court nominee a month since Republicans took over the chamber in 2015. But the strategy means that more than 20 other committee-approved nominees could remain stalled on the chamber's executive calender when lawmakers leave for a seven-week break July 15.

A long list of other Obama judicial picks will remain on hold in committee, beginning with the nomination of Merrick Garland to serve on the Supreme Court. Garland, nominated in March, hasn't received a hearing, and Judiciary Committee Chairman Charles Grassley (R-Iowa) said there still are no plans to consider the nomination before the election.

28 Judges on Hold

The Senate confirmed three judges on voice vote June 23 to serve on the Superior Court of the District of Columbia, D.C.'s trial court of general jurisdiction. But that chamber hasn't taken up a federal district court nominee since mid-May. McConnell rejected a bid by Democrats to confirm a package of 10 federal judges, saying Obama already has had more judges confirmed than President George W. Bush had approved at the same point in his administration (See previous story, 05/12/16). However, he later agreed to allow one federal district judge nominee—Paula Xinis—to be confirmed to serve in the District of Maryland.

Democrats said they are concerned that other nominees are in danger of falling victim to the so-called Thurmond Rule. It originated with former Sen. Strom Thurmond (R-S.C.), who said judicial nominees shouldn't be confirmed after political conventions in an election year. Republicans' schedule to leave town July 15 is geared to accommodate their convention the week of July 18.

Judiciary Committee ranking member Patrick Leahy (D-Vt.) criticized the state of play at a June 21 hearing on nominations, saying McConnell has only cleared 20 judges in the past two years, while judicial vacancies nearly doubled from 43 to 83 during the same time. “Of these, 30 are in courts so strained that the vacancies have been deemed ‘emergencies,' ” he said.

Even some Republicans are continuing to push for action on more judges, including Sen. Patrick Toomey (Pa.). Toomey, in a tough re-election race, wants the Senate to confirm Susan Paradise Baxter and Marilyn Jean Horan to serve in the District of Western Pennsylvania.

100 Days for Garland

Leahy said the lack of consideration of Garland at the Judiciary Committee's recent hearing was a “glaring omission.” Garland was picked by Obama over 100 days ago.

Leahy spoke on the same day the American Bar Association unanimously awarded Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, its highest rating of “well qualified” to serve on the court (See previous story, 06/22/16). Leahy said lawmakers should invite the ABA to testify about its findings rather than “take to the airwaves” to discredit his nomination.

McConnell's office, however, said that when Obama and Vice President Joe Biden were senators, they sought to derail the nomination of Samuel Alito to serve on the Supreme Court even though Alito, like Garland, received the highest ABA rating.

“When the ABA gave Justice Alito their highest rating—unanimously—then-Sens. Obama and Biden both turned around and joined a filibuster to block his nomination,” a spokesman said.

To contact the reporter on this story: Nancy Ognanovich in Washington at

To contact the editor responsible for this story: Heather Rothman at

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