I criticized President Obama last week for being slow to make appointments, so it’s only fair to remind everyone what he’s up against: There is a good opportunity in the Senate’s confirmation, finally, of Judge Robert Bacharach to the U.S. Court of Appeals for the 10th Circuit.
That’s because Bacharach was confirmed unanimously on Monday, 93 to 0. Where was the obstruction, you ask? A cloture vote in July failed 56 to 34, with three Republicans voting “present” and seven not voting. (Because 60 votes are needed for cloture, or to cut off debate, all that matters is the yes votes, so voting present and not voting are the same as voting no.) In fact, of the Republicans currently in the Senate, only Susan Collins, Maine, voted yes on cloture in July; everyone else was effectively against cloture then but voted for the nomination this week.
Even in July, Bacharach had been held up for far too long. He was appointed in January 2012 — and the seat he is finally about to fill has been open since June 2010.
This should not happen, especially to a nominee who faced no actual opposition.
I do think there is a fair case to be made for requiring a supermajority on lifetime judicial appointments — especially at the appellate-court level — to which the minority objects strongly. But when the minority abuses the process by filibustering judges it doesn’t even oppose, lawmakers are effectively asking for the elimination of the rules that give Senate minorities a chance to block some nominations. As Steve Benen wrote on the Maddow Blog: “It’s not just the Senate that failed miserably in this confirmation process; it’s the GOP minority that took the extraordinary step of filibustering a judge they wanted to confirm.”
Now, the good news is that Bacharach is the second appeals court nominee to be confirmed in the current Congress. The reforms the Senate enacted last month were intended to help particularly with nominations that are not controversial. It remains to be seen whether the Bacharach confirmation is part of a new trend of the Senate — and Republicans in particular — acting more responsibly, or whether further reform is needed on judicial nominations.
Jonathan Bernstein is a political scientist who writes about American politics.