Senate Democrats said Thursday that Republicans were preventing votes on some of President Barack Obama's U.S. district court nominees, a game-changing tactic that would bring retaliation against a GOP president some day.
While some of Obama's lower court nominees have been branded judicial activists by Republicans, both parties have traditionally agreed they deserve a filibuster-free confirmation vote that needs a simple majority.
A filibuster is a blocking tactic that requires 60 votes in the 100-member Senate before there can be an up-or-down confirmation vote.
The strategy has been used by both parties to prevent votes on nominees to the higher-level federal appellate courts. U.S. District judges have been spared the tactic in deference to home state senators, who often work together to recommend nominees.
The political warning came from Democratic Sens. Sheldon Whitehouse and Patrick Leahy at the weekly meeting of the Senate Judiciary Committee, where five district court nominees were sent to the full Senate. Three had strong Republican objections.
Republicans assert they have every right to oppose nominees they consider liberal judicial activists, but the party's future strategy is unclear. While 30 of Obama's lower court nominees have been approved by the Senate, another 17 are waiting for a vote — including five approved in committee Thursday.
Whitehouse, D-R.I., said, "We are on a track right now to destroy a tradition of senatorial courtesy to the senators of the home state.
"Traditionally, when two home state senators approved a nominee...they got a straight up-or-down vote without procedural obstruction.
"Erecting a blockade for a district court nominee is a new threshold we will cross. Once that tiger is let out of a cage, it will never get back in."
He said if Republicans continue on this course, a GOP president one day may experience the same tactic.
Leahy, chairman of the Judiciary Committee, said, "I feel very strongly about what the senator is saying."
In late July, Democratic senators asked for unanimous agreement to vote up-or-down on all the court nominees then awaiting confirmation. Republicans objected, leaving Majority Leader Harry Reid with the alternative of taking no action or tying up the Senate by trying to round up 60 votes for each nominee to break a filibuster. Reid chose not to tie up the Senate.
Sen. Tom Coburn, R-Okla., responded to Whitehouse that he understood the warning but added, "The fact is, this hasn't happened. To be lectured on something that hasn't happened, I find it difficult to comprehend.
"I have no intention of filibustering a district court nominee and don't know of any other senator" planning the tactic.
Whitehouse said, "A warning after the fact is no longer a warning. Once we cross the threshold, we can't go back."
The top Republican on the Judiciary Committee, Sen. Jeff Sessions of Alabama, said that while the views of home state senators should be considered, "I believe no judge should be given a lifetime appointment based solely" on the home state senators' support.
At the outset of the Judiciary meeting, Sessions said, "There is no question that the president, a former liberal law professor, intends to pack the courts with as many activists who will promote his vision of what America should be as he can.
"But Republicans will not stand quietly by and allow the rule of law in America to be historically altered by a federal judiciary that is agenda-oriented. If anything, we have been far too generous with our consent."
The nominees sent to the full Senate on Thursday with party splits are:
Edward Chen, nominated for the Northern District of California and Louis Butler, Jr., for the Western District of Wisconsin, both approved 12-7; and John McConnell Jr. for the District of Rhode Island, approved 13-6.
Two others were approved without opposition: Beryl Howell and Robert Wilkins, both to serve in the District of Columbia.