Note to media: Don't overlook GOP's history of obstructionism on judicial nominees, including Kagan

Blog ››› ››› ADAM SHAH

Speculating on who is on President Obama's short-list to replace Justice John Paul Stevens, a Reuters "Factbox" reported that when Elena Kagan was confirmed as solicitor general, "[s]ome Republicans voiced concern about her lack of courtroom experience." If they report such attacks, the media should take care to note that the reason she has not served as a judge is because of Republicans' obstruction of the nominees of former President Bill Clinton. While they were in charge of the Senate during the Clinton administration, they refused to hold a hearing or a vote on dozens of nominations, including Kagan's to a U.S. Court of Appeals seat in 1999.

As a February 10 Washington Post article reported, "President Bill Clinton nominated her for a spot on the U.S. Court of Appeals for the D.C. Circuit, but the Republican-controlled Senate never brought her up for a vote." In a September 16, 2002, article, Los Angeles Times staff writer David G. Savage similarly noted of Kagan: "Clinton nominated her in 1999 to the U.S. appeals court in Washington, but Senate Republicans killed her nomination without even giving her a hearing."

In 2002, then-Senate Majority Whip Harry Reid (D-NV) listed the dozens of Clinton judicial nominees blocked without a hearing or a vote:

These are people President Clinton nominated who never ever got a hearing -- not 2 days later, 2 weeks later, 2 months later, 2 years later. They never got a hearing. Fine people. In Illinois, Wenona Whitfield; in Missouri, Leland Shurin; in Pennsylvania, John Bingler; in South Dakota, Bruce Greer; in California, Sue Ellen Myerscough; Texas, Cheryl Wattley; in Texas, Michael Schaffman.

Circuit judges in the Fourth Circuit, James Beaty; Richard Leonard, never got hearings; Annabelle Rodriquez. In the 105th Congress, Helene White, Ohio; Jorge Rangel in Texas; Jeffrey Coleman, North Dakota; James Klein, District of Columbia; Robert Freedberg, Pennsylvania; Cheryl Wattley, Texas; Lynette Norton, Pennsylvania; Robert Raymar, Third Circuit; Legrome Davis, Pennsylvania; Lynne Lasry, California; Barry Goode, California. No hearings.

In the 106th Congress, 33 never get a hearing: H. Alston Johnson, Louisiana; James Duffy, Hawaii; Elana Kagan, District of Columbia; James Wynn, North Carolina; Kathleen McCree-Lewis, Ohio; Enrique Moreno, Texas; James Lyons, Colorado; Kent Markus, Ohio; Robert Cindeich, Pennsylvania; Stephen Orlofsky, New Jersey; Roger Gregory, Virginia; Christine Arguello, Colorado; Elizabeth Gibson, North Carolina; J. Rich Leonard, District of Columbia; Patricia Coan, Colorado; Dolly Gee, California; Steve Bell, Ohio; Rhonda Fields, District of Columbia; S. David Fineman, Pennsylvania; Linda Riegle, Nevada; Ricardo Morado, Texas; Gary Sebelius, Kansas; Ken Simon, Hawaii; David Cercone, Pennsylvania; Harry Litman, Oklahoma; Valerie Couch, Oklahoma; Marion Johnston, California; Steve Achelphol, Nebraska; Richard Anderson, Montana; Stephen Liberman, Pennsylvania; Melvin Hall, Oklahoma.

Before I sit down, they talk about Hispanic nominees. There is a Hispanic nominee they say has not moved quickly enough.

Jorge Rangel, who was nominated in July of 1997, never got anything. Enrique Moreno, Fifth Circuit, nominated in 1999, didn't get anything. Christine Arguello, July of 2000 -- nothing happened. Ricardo Morado, south Texas -- nothing happened. Anabelle Rodriguez -- these are just some of the names.

I suggest before the tears run too heavily down the cheeks of my Republican friends, they should go back and read their own statements given by their own Senators, and find out the States where people who were nominated by President Clinton never got a hearing.

During an October 22, 2003, Senate Judiciary Committee hearing on the nomination of Janice Rogers Brown to a Court of Appeals seat, Sen. Richard Durbin (D-IL) said of Kagan's nomination:

I'd like to begin by putting this nomination in historical context. Justice Brown was nominated to fill the 11th seat on the D.C. Circuit Court that has 12 authorized judgeships. But when President Clinton tried to appoint an 11th and 12th judge to this same court, Elena Kagan and Alan Snyder, the chairman of this committee denied them a hearing and a vote. Senate Republicans argued the D.C. Circuit was fully operational with 10 judges. The D.C. Circuit's workload did not justify any additional judges. Since 1997 the D.C. Circuit's workload actually decreased by 27 percent, according to the Administrative Office of the U.S. Courts. [Retrieved via Nexis]

Similarly, during a March 11, 2003, floor debate, Sen. Dianne Feinstein (D-CA) said:

For instance, Elena Kagan was a Clinton nominee to the D.C. Circuit Court of Appeals -- the same circuit to which Miguel Estrada is now nominated. In fact, Ms. Kagan was Miguel Estrada's supervising editor on the Harvard law review, yet Republicans stopped her nomination cold without even getting to the point of a filibuster, or a public accounting of who was for, and who was against, that nominee.

Elena Kagan was never filibustered on the floor, but she was effectively "filibustered'' in committee by one or two Senators who prevented a hearing or a committee vote.

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