Senator Burr: An up-or-down vote for the Eastern District nominee

During a 2005 stalemate over judges nominated to the federal courts, Sen. Richard Burr stood on the Senate floor and told his colleagues that regardless of what they thought of any particular nominee, they had an obligation to give each an up-or-down vote.

I believe if one of my colleagues objects to a particular nominee, it is certainly appropriate and fair for my colleague to vote against that nominee on the floor of the Senate.  But denying judicial nominees of both parties, who seek to serve their country, an up-or-down vote, simply is not fair.  It was certainly not the intention of our Founding Fathers when they designed and created this very institution.

Yet by his own actions with respect to Jennifer May-Parker, nominated by the President on June 20 to serve in the Eastern District of North Carolina, Burr is ignoring his own advice.

The vacancy in the Eastern District, based in Raleigh with courthouses in Wilmington, New Bern, Greenville, Fayetteville and Elizabeth City,  is now going on eight years — the oldest federal district court vacancy in the country.

That’s not just a dubious distinction; it’s an embarrassment. 

And a crisis (a “judicial emergency’ in the parlance of court administrators).  The absence of a judge to fill that seat has meant that three retired judges on senior status — two over 80 years old — continue to carry a significant number of the district’s growing caseload while the other three judges struggle to keep up.

That’s had real-world consequences for parties with cases before the court.

For the year ending September 2012 (new numbers have not yet been released) it took longer for a civil case to move from filing through trial — just under 45 months — than in any other district in the country except in California’s Eastern District. And for a nonjury trial, that number bumps up to four years.

It’s taken nearly eight years just to get a nominee for the spot since it opened up on Dec. 31, 2005 — with long periods of inaction interspersed with  some movement in 2009, when Burr and Sen. Kay Hagan both submitted names for the president’s consideration.In the meantime there’s been little more than politics and fingerpointing  for the delay.

Now that we have a nominee, though, the process should move along relatively quickly. It has for others nominated at the same time as May-Parker, as well as several nominated after her, who’ve had hearings and are scheduled for votes on the Senate floor (delayed only by the government shutdown).

But May-Parker has not yet even had a hearing scheduled before the Senate judiciary committee, a necessary step before being approved by the full Senate.


As we reported a month ago and still the case today (confirmed by a spokesperson for  Judiciary Chair Sen. Patrick Leahy), Sen. Burr has not returned the “blue slip” indicating his support for May-Parker. Nor has he returned calls concerning his intentions with respect to May-Parker.

The blue slip signals that the nominee’s home senators are in favor of holding a committee hearing on the nomination. Returning a blue slip does not mean that a senator is committed to supporting the nominee if he or she reaches a full vote on the Senate floor. But not returning the blue slip is tantamount to a veto.

It’s also the precursor to more delay.  Absent Burr’s blue slip, May-Parker’s nomination will languish for a while, conceivably until someone calls it dead, at which point there will be new nominees to be suggested, vetted, nominated and finally voted upon, likely for more years ahead.

Letting the blue slip question linger is no different than allowing a colleague to put off a nominee’s floor vote by filibuster or other tactic.

An up-or-down vote is what the nominee deserves.  Sen. Burr said so, back in 2005.

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