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By AndrewHyman Comments () / Email this page » / Leave a comment »

The U.S. Senate went on recess very early this morning, until September 5. But immediately before adjourning, the Senate returned the nominations of William Myers, Terrence Boyle, and N. Randy Smith to the President. (UPDATE: Haynes and Wallace nominations returned too.)

Hat tip to Cboldt for this very unusual news. Senator Frist announced that all three of these nominations were being sent back due to objections from the minority. Doubtless, the minority wanted to prevent any of these nominees from being voted on by the full Senate, as had been planned for September.

Recall that the Kavanaugh nomination was returned at the end of the first session of the 109th Congress. In contrast, the nominations of Boyle, Myers, and Smith are now being returned due to a recess of more than thirty days. The return of these three nominations this morning is an extraordinary procedural maneuver, allowed by Senate Rule 31, Section 6:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

Almost always, these requirements are waived by unanimous consent until the end of a two-year Congress. Note that the renomination of Brett Kavanaugh worked out pretty well; the same might or might not apply to Boyle, Myers, and/or Smith.

It would be easy enough for the President to renominate them in September if they are willing. Then they could be reported out of committee by September 12 which would restore the status quo (they would then apparently be "future nominees" rather than "pending nominees" within the meaning of the Gang of 14 Deal). The plan for floor votes could proceed. It's possible, though, that Myers might decline to be renominated, so that Randy Smith (another Idahoan) could be renominated in his place. I very much hope that Judge Boyle is renominated, and would not be the least bit disappointed if all three are renominated.

Myers has been opposed by the minority ostensibly because of the types of clients he represented. Smith has been opposed by the minority ostensibly because he --- like most of his would-be predecessors --- is not from California. Boyle has been opposed by the minority ostensibly because of harmless, run-of-the-mill recusal errors. All of these grounds are preposterous.

The Senate's treatment of Boyle has been especially egregious, seeing as how he has not received an up-or-down vote --- or any other kind of vote --- on the floor of the Senate, over the course of fifteen years. That's right, fifteen years.

The spectre of perpetual filibusters is what's driving this process. Perpetual filibusters of judicial nominations are contrary to Senate tradition, were never employed prior to this century, and probably never will be employed by the GOP. They're causing immense damage to the judiciary by turning nominations into nightmares, while giving inordinate power to a political minority that wants to impose its own ideological requirements upon the judiciary.

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