Blind Justice. (Credit: Tim Evanson via Creative Commons)
Niels Lesniewski makes a great catch today, noticing that former Missouri judge Ronnie White has been renominated for a seat on the U.S. District Court for the Eastern District of Missouri. White was first nominated by President Bill Clinton in June 1997. His nomination lingered before a Republican Senate, left in limbo on the calendar at the close of the 105th Congress in 1998. Clinton renominated White in January 1999. This time, the Republican-led Senate brought up the nomination for a vote in October 1999, and in a nearly unprecedented move, defeated his confirmation on a party-line vote of 45-54.
From the vantage point of today’s judicial nominations battles, the 1999 battle is curious.
First, a Republican Senate did not have to call up for consideration a Democratic president’s nominee who they opposed. The GOP could have ignored White’s nomination, leaving the nomination in limbo as they did when White was first nominated in 1997. That is the prerogative of a Senate majority in periods of divided party control. Lesniewski reports that Senate Democrats expected White to be confirmed, a reasonable expectation given the GOP’s move to allow a floor vote on White’s nomination.
Second, Ronnie White was defeated on an up-or-down confirmation vote; he was not defeated by failing to secure sixty votes for cloture — which today is the far more common method for the opposition party to keep nominees off of the federal bench. This is an important reminder that strategies for derailing nominations change over time: Parties adapt their strategies to their parliamentary situation and over time seem to ratchet up their opposition. This complicates of course comparisons of opposition party behavior over time. Indeed, in Clinton’s second term, GOP senators were primarily focused on requiring roll call votes for nominees instead of giving Democratic nominees a glide path to the bench via voice vote. As Sen. Lauch Faircloth (R-NC) noted on the Senate floor in 1997:
Our vote today is an important precedent since it marks the beginning of the Senate’s new commitment to hold roll call votes on all judicial nominees. This is a policy change which I had urged on my Republican colleagues by a letter of January 8, 1997, to the Republican Conference. Voting on federal judges, who serve for life and who exert dramatic — mostly unchecked — influence over society, should be one of the most important aspects of serving as a U.S. Senator (Congressional Record, March 19, 1997, S2529).
Voting down a judicial nomination in 1999 was unheard of, not least because senators had only recently begun to push for recorded confirmation votes. Tactics have continued to evolve. In the intervening 15 years, the Senate GOP (now in the minority) has steadily turned the thumbscrews on Democratic nominees for the bench, routinely forcing the Democratic majority leader to secure sixty votes for cloture before proceeding to a vote. To be sure, Democratic senators in the minority filibustered several of George W. Bush’s nominees for the appellate bench. But the routine filibustering of judicial nominations by today’s Senate minority drives home how advice and consent battles have evolved over time.
What do these evolving wars of advice and consent portend for Ronnie White’s third try for a seat on the federal bench? Both home state senators (GOP senator Roy Blunt and Democratic senator Claire McCaskill) have both vowed not to withhold the committee “blue slip,” which ostensibly allows the nomination to go forward with a hearing. That portends well for White’s confirmation. That said, as the advice and consent wars have evolved, district court nominees have come under fire. As Goldman, Slotnick and Schiavoni note in this summer’s issue of Judicature, even non-controversial district court nominees with support of their home state senators can become targets of foot-dragging by the minority. With a quarter of Obama’s district court nominees left in limbo at the end of the last Congress, Ronnie White’s third attempt might prove just as difficult as the previous two.