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Lee ready to deal on his judicial protest

Published June 28, 2012 1:20 pm

Freshman senator would begin voting for judges he supports if Democrats agree not to push circuit-court nominees.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • Sen. Mike Lee is ready to end his lone wolf protest against President Barack Obama's nominees, but only if Democrats will delay confirmation votes on appellate judges until after the election.

Lee, a freshman Republican from Utah, has voted against every one of Obama's nominees this year, a retaliatory move launched in January after the president made recess appointments while the Senate considered itself in session.

His protest hasn't gone the way he planned.

In February, Lee was recruiting his fellow Republicans to join him, saying: "If it's just me alone, it's not going to change much."

He was able to recruit Sen. Jim DeMint, R-S.C. to join him, but that was it. And Lee was right. His stance has not changed much. He hasn't wavered, though, even voting against judicial and administrative picks he likes, including two Utah District judges.

David Nuffer has been confirmed, and Robert Shelby awaits a Senate vote.

Originally, Lee said he would keep up his persistent opposition until Obama rescinded those January recess appointments, but this week Lee went to the Senate floor and offered a concession. He'll start voting for district court judges he supports if Democrats agree to institute the "Thurmond Rule," an informal tradition to postpone action on circuit court nominees in a presidential election year.

Lee is essentially piggybacking on Republican leaders, who earlier this month argued it's time to institute the rule. Since then, many Republicans have attempted to tie the Thurmond Rule to Senate Judiciary Chairman Patrick Leahy, a move Lee repeated in his speech Monday.

"By enforcing the Leahy-Thurmond rule now, we will demonstrate for the historical record the Senate did not acquiesce in President Obama's unconstitutional recess appointments and, instead, took action to protect the Senate's institutional prerogatives," Lee said. "When we have done so, I will again be in a position to vote in favor of qualified consensus district court nominees."

The point of the informal rule is to separate presidential politics from the confirmation process and to stop a president from stacking the courts with nominees shortly before leaving office. It does not impact district court nominees, like Shelby.

The late Sen. Strom Thurmond instituted the practice in 1980 and it has been invoked — first in the fall and more recently creeping into the summer — every four years since.

The minority party is often the first to call for its use, while the majority, in this case the Democrats, tends to resist.

That's what Leahy, D-Vt., did this week, arguing Republicans are invoking the rule too early and should at least allow votes on circuit court nominees who have broad bipartisan support.

"It is hard to see how this new application of the Thurmond Rule is really anything more than another name for the stalling tactics we have seen for months and years," Leahy said.

But Leahy wanted to institute the Thurmond Rule in July 2004, when President George W. Bush was in a close race with Sen. John Kerry. Sen. Orrin Hatch was the Judiciary Committee chairman at the time, and a Utahn was up for a circuit court spot. Hatch rejected Leahy's move outright.

"There is no Thurmond Rule; that's just Leahy popping off," Hatch said at the time. "Strom Thurmond did not control the committee in that regard, but they'll try to make it sound like it. The fact is we have to try to keep moving judges as much as we can because it's the country that's concerned, not politics."

Hatch has yet to take a position on Republican efforts to institute the rule this year. A spokesman said he is waiting for a unified Senate Republican position.

There are currently 14 circuit court vacancies and seven nominees awaiting a confirmation vote.

Lee said the Senate has already confirmed five circuit court nominees in 2012, a comparable number to the past two presidential years. In 2008, the Senate confirmed four such nominees and in 2004, five received Senate approval.

mcanham@sltrib.comTwitter: @mattcanham