It is nonsensical that the U.S. Senate has held up for so long the confirmation of William Kayatta Jr., of Cape Elizabeth, to the U.S. Court of Appeals for the First District. Even though he was approved by a bipartisan majority of the Senate Judiciary Committee, his nomination has sat on the Senate calendar since April. Minority Leader Mitch McConnell hasn’t hidden his motives: He told his colleagues he would refuse to permit votes on circuit court judges until after the election, in case a Republican gained the White House and made different appointments.
The election has come and gone. It’s time the Senate voted to confirm Kayatta, who is a partner at the Portland law firm Pierce Atwood and has more than 30 years of experience. The duty in making sure the vote happens falls to McConnell and Senate Majority Leader Harry Reid. But other Republican senators, including Maine Sens. Susan Collins and Olympia Snowe, can press them to schedule a vote immediately. Collins has already sent a letter urging them to move to a vote and should continue to apply pressure. In a prepared statement, Snowe said, “There is simply no good reason for his nomination to remain on the Executive Calendar.”
It’s possible the Senate will try to wait until the new Congress is sworn in to tackle President Barack Obama’s court appointments. But doing so makes even less sense, as the president and majority party status will not change, and waiting until the new year would require Obama to renominate his choices. Filling the vacancy on the First Circuit bench soon is especially important because of its size. With only six active judges in the Boston-based appeals court, which is one step below the U.S. Supreme Court, one vacancy puts a disproportionate amount of work on the remaining judges, who hear cases from Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico.
The holdup is clearly not a matter of Kayatta’s qualifications. He has made several ranking lists for top litigators in the country, served as president of the Maine Bar Foundation, chairman of Maine’s Professional Ethics Commission and chairman of the Maine Board of Bar Examiners. In 30 years, he has lost only two trials. Of the 37 appeals cases he has argued — including two to the Supreme Court — he prevailed in 31. He grew up in South Portland and graduated from Amherst College and Harvard Law School. He received a bipartisan, 16-2, recommendation, in the form of a voice vote, from the judiciary committee.
It’s not uncommon for the Senate to stall on judicial appointments, and Democrats and Republicans alike are guilty of the practice. But blocking skilled potential judges has increased in recent years, according to the Congressional Research Service. Just 5.1 percent of uncontroversial circuit court nominees had to wait 200 or more days to be confirmed by the Senate under President Ronald Reagan. Under George H. W. Bush, it was 7.3 percent; Bill Clinton, 22.2 percent; George W. Bush, 35.7 percent; and Obama, 63.6 percent.
McConnell invoked a loose Senate practice called the “Thurmond rule” to block floor consideration of Kayatta’s confirmation. Historically the practice has stalled controversial nominees from getting approval until after a presidential election. More recently it has been used to stall all nominees, whether they are controversial or not. Though it’s possible Kayatta’s appointment could be brought up before the end of the year, judicial confirmations are rare during lame-duck sessions of Congress on presidential election years.
There has been, and continues to be, no good reason to hold back Kayatta. The matter is not complicated. There is no thousand-page report for senators to read. Kayatta wants to be a judge. The court needs him. He is supported by the Democratic president, by the Republican senators in his home state and the varied members of the judiciary committee. All the Senate has to do is say yes. A vote should be taken immediately.