In case you missed it amidst the hubbub surrounding North Carolina’s new and infamous all-purpose discrimination law, HB2, there was other news in the public policy world last week. One of the more important developments for North Carolina took place on Thursday when President Obama nominated former state Supreme Court Justice Patricia Timmons-Goodson to fill a decade-old vacancy on the U.S. District Court for the state’s Eastern District. If confirmed, Timmons-Goodson would be the first judge of color to ever serve in the Eastern District (a region of North Carolina in which the African-American population is higher than any other) in the history of the federal courts.
For those of you who are counting, that’s 237 years.
Unfortunately, in a move that just about everyone saw coming (including, undoubtedly, the White House), U.S. Senator Richard Burr has announced that he will torpedo the nomination as the bizarre rules of the U.S. Senate all but guarantee him the right to do. As with Supreme Court nominee Merrick Garland, Burr apparently takes the view that federal judicial nominations during presidential election years are now a big no-no.
“President Barack Obama’s latest pick Thursday to fill a longstanding vacancy in eastern North Carolina’s federal courts already appears scuttled by Republican Sen. Richard Burr, who blames the president for not acting in good faith.
The White House announced Obama had nominated former state Supreme Court Justice Patricia Timmons-Goodson of Fayetteville to become a U.S. District judge in the Eastern District.
If confirmed by the U.S. Senate, Timmons-Goodson would fill a seat that’s been empty for more than 10 years. The president’s 2013 nomination of Jennifer May-Parker for the judgeship was never heard by the Senate Judiciary Committee.
Late Thursday, Burr said the nomination is a ‘transparent attempt to turn the Eastern District vacancy into an election season stunt” and that he “will not support a new nomination in North Carolina from this administration.’”
Of “election season stunts”
Burr’s latest blockade comes on the heels of recent announcements by him and fellow Senator Thom Tillis that they would not, under any circumstances, agree to allow Supreme Court nominee Merrick Garland to be considered by the Senate. As you will no doubt recall, both senators have staked out the position that the Garland nomination should not be considered because 2016 is a presidential election year. Here’s Burr, mere hours after Justice Antonin Scalia’s death on February 13:
“In this election year, the American people will have an opportunity to have their say in the future direction of our country. For this reason, I believe the vacancy left open by Justice Scalia should not be filled until there is a new President.”
As with his Timmons-Goodson blockade, this is, of course, an utterly absurd position. There is no precedent for denying presidents the right to nominate judges during election years – especially when the vacancy in question opens up a full 342 days prior to the next Inauguration Day.
“In October 1956, Republican President Dwight Eisenhower did something even more extraordinary than making a nomination less than a month before election day. He put William Brennan directly on the court with a “recess appointment” to replace Sherman Minton. He then formally nominated Brennan in January 1957.”
As a lead editorial in the New York Times observed in March:
“Under normal, even routinely partisan, circumstances, Judge Garland would sail through confirmation hearings and be confirmed by the Senate in a matter of months, if not weeks….
But we are no longer operating in the realm of sense or normality. The Republican Party is staring down the very strong possibility that Donald Trump will be the party’s presidential candidate. And now, its leaders, in a stupendous show of political malfeasance, are putting the Supreme Court’s constitutional duties on hold while they make dishonest claims about ‘letting the people’s voice be heard.’”
Two weeks ago, 15 former presidents of the American Bar Association sent a letter to Senate leaders making clear their concern that the refusal to consider Garland because of the election year excuse posed a threat to “the rule of law.”
Unfortunately, both Burr and Tillis remain unmoved.
Implications of the Burr stance
It’s hard to know what’s more maddening about Burr’s stance – the transparency of the senator’s hypocrisy and opportunism or his utter lack of transparency in espousing his position. That is to say: while no one in his or her right mind has any doubts as to Burr’s blatantly political motives, the senator has nonetheless refused to sit down and seriously answer reporters’ questions about his blockades. In the case of the Eastern District seat (where Burr blocked a previous nominee for years) he has literally and repeatedly brushed off inquiries, stating that the public has no right to know his motives and the matter is, like some petty political grudge, a matter between him and the White House.
Given, however, the evident seriousness with which both Senator Burr and his colleagues are now espousing their “no election year nominations” rule, the question that is really begged at this point is this one: Why not place a hold on all significant government decisions until 2017?
Seriously, the composition of the U.S. Supreme Court is certainly a vitally important matter, but so are many other important decisions on the 2016 public agenda. By what authority does Senator Burr purport to introduce and vote on legislation on any number of important subjects this year? After all, Burr is up for re-election in just six months in what promises to be a very close race. Wouldn’t it make more sense for him to postpone any significant official actions until after we’ve heard “the people’s voice”?
And once the senator has implemented the election year rule with respect to his own actions, he will undoubtedly want to urge them upon his good friend, North Carolina Governor Pat McCrory. A brief news search from recent months produced the shocking revelation that Governor McCrory has been nominating individuals to fill state court judicial vacancies at a rapid clip in 2016. This, despite the fact that he too will face the voters in just six months.
And after convincing McCrory to shut down things for the rest of the year, Burr will likely want to contact state legislative leaders as well. As WRAL.com reported last week, the General Assembly has been on a confirmation binge during an election year too:
“The Senate gave Wednesday unanimous support to Linda Combs, whom McCrory originally appointed in 2014 to fill out David McCoy’s seven-year term. McCrory nominated her for a full term last year. The House confirmed her last May but the Senate didn’t get to it until now. Combs remained on the job in the meantime.
The Senate also voted to confirm former McCrory Revenue Secretary Lyons Gray to the Utilities Commission and other appointments to the Industrial Commission and the Board of Agriculture. They’ll still need House confirmation.
House committees meeting Wednesday recommended other nominees to the Industrial Commission and as Special Superior Court judges.”
Despite the outrageous blockades of Garland, Timmons-Goodson and scores of other Obama nominees, supporters of sane court nominations policies have not given up. You can learn more about this by joining us next Tuesday May 10 for a special NC Policy Watch Crucial Conversation with one of the nation’s leading authorities on the subject, Professor Michael Gerhardt of UNC Law School. Click here for more information.
Meanwhile, this week, advocates at Progress NC and Americans United for Change will be sponsoring events around the state to demand that Burr (and Senator Tillis) “do their jobs” and abandon their absurd blockade. Here is the schedule:
Wednesday May 4th – 12PM Charlotte: https://www.facebook.com/events/558660014312849/
Wednesday – May 4th – 5PM Asheville: https://www.facebook.com/events/1065188453568769/
Thursday – May 5th – 12PM – Greensboro: https://www.facebook.com/events/178105889250679/
Friday – May 6th – 3PM – Raleigh: https://www.facebook.com/events/502847276570238/
Saturday – May 7th – 4PM – Greenville: https://www.facebook.com/events/1739837729587649/
Stay tuned – we’ll keep you updated as this story develops.