A few weeks ago, I wrote a post about judicial nominations that linked to this Congressional Research Service report from last year entitled “Role of Home State Senators in the Selection of Lower Federal Court Judges” [PDF]. It contained a variety of information on how the judicial selection process works for the various courts under different scenarios, one of which is how it has traditionally been carried out when the President is of one party and both of a state’s Senators are from the other. In such cases, explained CRS, the Senators played a secondary role in the selection process:
By custom, when neither of a state’s Senators is of the President’s party, the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President’s party. Historically, in the absence of a Senator of the President’s party, the state official or officials who most frequently have exercised the judicial “patronage” function have been the most senior member, or one of the most senior members, of the party’s House of Representatives delegation, the House party delegation as a whole, the governor, or state party officials. In any given state, one of these officials may exercise the recommending function exclusively, or share it with one or more of the others.
[A]t the start of presidency of George W. Bush, a Republican, in January 2001, the new Administration looked to other than senatorial sources for advice on judicial candidates in states having two opposition party Senators. The Legal Times reported that in “the 18 states where both senators are Democrats, Bush will be getting advice on potential nominees from a high-ranking Republican House member or the state’s Republican governor” … By custom, the role of a state’s Senators in judicial candidate selection, when neither is of the President’s party, is secondary to the role of those officials discussed above, who actually choose candidates to recommend to the President. Customarily, in these circumstances, the state’s Senators, if they are consulted by state officials of the President’s party, are consulted for their reactions to candidates under consideration, but not for their own preferences. Where consultations of this sort are done in good faith, negative as well as positive feedback from the Senators would be welcomed, but typically they would not be called upon to make their own candidate recommendations.
Apparently, the two Republican Senators from Texas weren’t aware that the White House had switched hands and were refusing to cede control of the process, forcing state Democrats to go over their heads and get the White House to put them in their place:
After laboring in the shadows of George W. Bush and Tom DeLay for most of the last decade, Texas Democrats got a fresh taste of relevance Tuesday when the White House publicly declared them the victors in a power play over judicial nominees.
For years, the state’s Republican senators screened applicants for lifetime spots on the federal bench in Texas and for powerful U.S. attorney posts. As recently as last week, they refused to cede that prerogative and claimed the administration was behind them.
That left Texas Democrats – the third-largest delegation of Democrats on Capitol Hill – steamed enough to summon the president’s top lawyer, Greg Craig, and insist on public reassurance that Democrats get to pick judges under a Democratic administration.
After he got an earful for 75 minutes Monday, his office issued a clarification.
“No federal judge, U.S. attorney or U.S. marshal will be nominated by the president … unless that person has the confirmed support of the Texas Democratic delegation,” the White House said Tuesday.
Both senators now say they are looking forward to working with the White House and the state delegation in the process but are reminding everyone that “they still have the power to hold up nominees they don’t care for:”
The senators implicitly threatened to block nominees if they’re bypassed or disapprove of candidates who emerge from the Democrats’ process.
So don’t be surprised if Republicans and right-wing judicial activists now start citing this change as further evidence that the White House and Democrats are creating a contentious and counterproductive atmosphere around the issue of judicial nominations.