WASHINGTON — More than 30 judicial nominees could end up as collateral damage in the election-year fight over President Barack Obama’s effort to fill the vacancy on the Supreme Court and Senate Republicans’ steadfast opposition.
Twenty-eight of Obama’s nominees to district court and five to the appeals court remain in limbo, although Republicans have indicated they would be open to voting on some. The Senate confirmed five judicial nominees to the federal bench in January and early February, but Republican leaders haven’t set any votes since Supreme Court Justice Antonin Scalia died Feb. 13 and the GOP said no hearings and no votes on the Supreme Court choice would be permitted.
Last week, No. 2 Senate Republican John Cornyn of Texas objected when Democrats called for a vote on two nominees for federal district court, Waverly Crenshaw of Tennessee and Paula Xinis of Maryland.
“It is the prerogative of the majority leader to set the agenda,” Cornyn said.
Adding to the Democratic pressure on the GOP, Obama announced on Tuesday that he was nominating six to district courts, including five in Cornyn’s home state of Texas, and one for the appeals court.
Confirmations to lifetime appointments to the federal courts have long been a flashpoint in an increasingly polarized Washington. In 2013, majority Democrats rewrote filibuster rules and rammed through 89 judges. Republicans frustrated over that move are now in charge.
Senate Majority Leader Mitch McConnell, R-Ky., hasn’t said if he will schedule additional votes to confirm federal judges before the end of Obama’s term. In saying his party will block Obama’s Supreme Court pick, which could come as soon as this week, McConnell hasn’t mentioned any of the lower court nominees.
For McConnell, blocking nominations could cause problems for some members of his GOP caucus. Obama nominated Tennessee’s Crenshaw in early 2015 and he has the support of both of Tennessee’s Republican senators, Bob Corker and Lamar Alexander. The seat is defined by the court system as a “judicial emergency” because of the number of pending cases there.
In Tennessee in February, Corker said it’s traditionally been tough to move judicial nominees in the final year of a president’s term.
“I support Mr. Crenshaw here, Lamar and I both do, and yet I’m not sure he’s even going to be able to come up for a vote,” he said Feb. 22.
Pennsylvania Sen. Pat Toomey, a Republican who is facing a tough re-election in November, wrote Senate Judiciary Committee Chairman Charles Grassley last month and urged him to move two district judge nominees whom he is supporting.
“These nominations unfortunately still remain pending before your committee, and I want to again urge you to bring these nominees up for a vote,” Toomey wrote in a Feb. 19 letter.
Two other Pennsylvania district court nominees backed by Toomey and the state’s other senator, Democrat Bob Casey, are pending a Senate floor vote.
Meanwhile, conservative groups are encouraging McConnell to do the opposite. A January memo from the advocacy group Heritage Action urged the Senate not to confirm any of Obama’s non-security nominees. “Granting any more lifetime appointments to federal judges whose views align with this president’s radical ideological agenda is indefensible,” the memo read.
Timing is also a challenge for the judicial nominees. In recent decades, the Senate has slowed — and gradually stopped — its approval of judges nominated by a president of the opposite party as the months go by in the president’s final year in office. The two sides often clash anyway.
Cornyn, the No. 2 Republican in the Senate, said last week that he hoped the Senate would move on some nominations. But he acknowledged there won’t be any confirmations after the summer, as Obama wraps up his term and the presidential election gears up.
Republican senators expressed hope that more judges will be confirmed this year.
“Some of them will get through,” said South Carolina Sen. Lindsey Graham, a member of the Senate Judiciary Committee who is supporting a judge nominee from his state. “We’re very close.”
He said he hopes that the judges won’t get caught up in the Supreme Court fight. “Some of them will,” he said.
Some Democrats have made clear they will criticize McConnell for leaving the seats on the bench vacant — or even if he tries to fill them. They say votes on lower court judges could undermine the GOP’s case on the Supreme Court.
Sen. Chuck Schumer, D-N.Y., a member of the Judiciary Committee, called it a “pickle” for GOP leaders, calling on McConnell to confirm judges at all levels.
“Republicans know they can’t get away with complete and total obstruction, so they may try to set up a double standard,” Schumer said.
Associated Press writers Alan Fram and Kathleen Hennessey in Washington and Erik Schelzig in Nashville contributed to this report.