Say what you want about Marco Rubio, Florida’s Tea Party senator, but when it comes to federal court nominations in need of his approval, at least his constituents know where he stands.
It took a while with William Thomas, a gay, black judge from Miami who Rubio initially approved but then later refused to return the blue slip needed to get the judge a hearing before the Senate Judiciary Committee.
When pushed, Rubio said he was unhappy with rulings Thomas had handed down in two cases.
Call it cover or call it the truth – but at least Rubio showed enough respect for the voters who sent him to Washington to offer a reason for what many viewed to be obstructionism.
President Obama ultimately pulled the Thomas nomination but then named another gay, black judge as his choice for a seat on the federal bench in Florida. And early this week, Rubio signaled his support by returning the blue slip for that nominee.
Compare that to the response by the gentleman from North Carolina, our own U.S. Senator Richard Burr, who’s blocking his own nominee, Jennifer May-Parker — a young federal prosecutor in Raleigh who, if confirmed, would be the first African-American judge to serve in the Eastern District of the state’s federal courts.
Burr’s answer when asked why?
He doesn’t discuss judicial nominations.
That response should disturb North Carolinians for a number of reasons, given that facilitating judicial appointments is part of the job voters sent him to Washington to do.
But his recalcitrance is also jeopardizing the judicial process in the Eastern District, where the judges who serve the counties from Raleigh to the coast have been handling the state’s largest caseload while down a judge for more than eight years now.
To keep cases moving there, the courts have been relying on the services of three senior status judges near or over the age of 80.
So while Burr may intend that his silence lasts forever, the energy and assistance of those able judges won’t.
When that happens, the vacancy in the district – the longest-running district court vacancy in the nation by a long shot — will move from a “judicial emergency” on paper to an actual emergency for all who walk through the courthouse doors.
As a newly-elected senator in 2005, Burr acted quickly to move judicial nominees along, joining then-senator Elizabeth Dole in February of that year in submitting blue slips for three federal judges and a prosecutor then pending.
“For too long, even judicial nominees supported by a majority of United States Senators were tied up in partisan politics,” Burr said at the time. “Our judicial nominees deserve an up-or-down vote and I am proud to join with Senator Dole in assisting these four North Carolinians in moving forward in the confirmation process. By signing these blue slips, these North Carolinians are one step closer to a vote on the Senate floor.”
The senator reiterated those points in a speech three months later, telling his colleagues that judicial nominees deserved an up-or-down vote on the floor:
“There is no doubt in my mind that I was sent here to do what the people of North Carolina heard me say I would do, and that was to work hard and to accomplish solutions to real problems,” he said then. “There is no doubt in my mind the task includes ensuring that the Senate provides judicial nominees up-or-down votes.”
Burr would go on in 2006 to applaud the nomination of Frank Whitney to serve as judge in state’s Middle District as well as the nominations of three additional men named seven months later for seats on the federal bench.
At roughly the same time, a vacancy opened in the Eastern District when U.S. District Judge Malcom Howard took senior status. That vacancy languished for a number of years, but in 2009 both Burr and U.S. Sen. Kay Hagan sent the President their choices for that seat – both approving either Jennifer May-Parker or Senior Resident Superior Court Judge Allen Cobb as nominees.
This past June, the President selected May-Parker as his choice, and Hagan promptly returned her blue slip, consistent with her approval in 2009.
But Burr did not, and has since consistently refused to say why – allowing the nomination to languish, much the way the colleagues he chided years before had done.
With the lapse of time, President Obama renominated May-Parker for the Eastern District seat again in January.
And again, Sen. Hagan voiced her approval.
“Jennifer May-Parker has a distinguished record as a prosecutor in North Carolina’s Eastern District and I am confident she would serve on the federal bench with great distinction,” Hagan said in an email statement.” There is no question that Ms. May Parker has the experience and expertise this position requires. I have returned my blue slip and hope that she can be swiftly confirmed by the Senate.”
Senator Burr, on the other hand, has refused to act and would not return calls for comment.
Senator Burr has gone from being outspoken critic to poster boy for obstructionism in the judicial confirmation process, cited frequently in recent months for his abuse of the blue slip process.
But a growing chorus is calling for the chair of the Senate Judiciary Committee to send the blue slip tradition the way of the filibuster.
In January, members of the Congressional Black Caucus asked the Senate to process nominations without waiting for the approval of a nominee’s home state senators.
And according to this report, the White House is now also considering a push for abandonment of the blue slip as well.
In the meantime, the judges in North Carolina’s Eastern District — home to 44 counties and a significant minority population – continue to handle more cases with fewer judges than other districts in the state.
They’ve managed to do that these past eight years (in some years better than others) thanks to help from three judges on senior status: Malcolm Howard, age 75; Earl Britt, age 82; and James Fox, age 86.
“Our senior judges are very active senior judges,” said Julie Richards, Clerk of Court in the Eastern District. “Through their assistance we’re able to manage the workload of this district.”
Whether their assistance will outlast Burr’s silence is unknown.
And why Burr’s backed off from supporting his own nominee remains a mystery.
Is it politics? Is it race? Is it gender?
Still, Sen. Burr says nothing.
As his silence lingers, Jennifer May-Parker sits and waits – something Burr abhorred when he chastised his Senate colleagues in 2005.
The Fourth Circuit’s Andre Davis, the first African-American nominated by President Obama to a federal judgeship has stepped down.
And the lone African-American judge serving in North Carolina’s federal district courts, the Middle District’s James Beaty, will take senior status in June.
That’s saying something.