Cook: Why Travis McDonough's path to federal judgeship is suddenly in jeopardy

photo Travis McDonough
photo David Cook

When Republicans won control of the Senate on Tuesday night, life suddenly became much more complicated for our city's Travis McDonough.

Earlier this year, sources confirmed McDonough -- former Miller & Martin attorney and current chief of staff for Mayor Andy Berke -- as President Obama's nominee to replace retiring U.S. District Judge Curtis Collier.

To get from City Hall to a lifelong federal judgeship, McDonough must pass through a full Senate vote, a route that didn't seem so uncertain when Democrats were a majority.

Now a GOP Senate could monkey-wrench it all.

"A Republican Senate would undoubtedly stop confirmation on virtually all Obama-nominated judges," Norm Ornstein predicted several months ago in The Atlantic.

There are now 54 district court vacancies, and filling them is a standard process. The White House passes down a short list of finalists -- in McDonough's case, just one or two names -- to home-state senators for their initial approval.

Then the White House announces a finalist, whose name is submitted to the Senate Judiciary Committee, then to the full Senate.

Traditionally, it moves along with some grace. Unless a nominee is politically egregious, senators usually won't fight the nomination, even if they're a different party than the president. It's an act of deference, with senators expecting the same when their party returns to the White House.

Then came this new Thunderdome world of eye-for-an-eye politics. Republicans have already blocked some Obama nominees, and if the GOP is still hungry for revenge -- remember the Democrats cheap-shotting the filibuster rules on them? -- then blocking even more nominees would be a fine way to get it.

In a way, McDonough's fate is America's fate, too. Will Congress choose common-ground decorum or spite?

"I could write two scenarios," said Russell Wheeler of the Brookings Institute.

In the first, reasonableness wins. Republicans honor Obama's nominations, re-establishing the relationship and expecting Democrats to one day do the same for their nominees. Plus, heavy obstructionism could backfire, soiling their image in the 2016 elections.

"Refusing to confirm reasonable judicial nominees could contribute to that view," Wheeler said.

Then, again, Republicans could interpret Tuesday's election as a mandate and create a grim second scenario, roadblocking everything that comes from the White House and announcing to America a fist-on-table message.

"We're in control now. We're not going to approve anything he does," Wheeler said.

America faced this crossroads during the final two years of the Reagan, Bush II and Clinton presidencies. The Senate was at odds with the White House, yet still confirmed a reasonable number of judicial nominees.

"There is a precedent for the Senate not totally blocking things," said Wheeler.

We can watch for signs and omens. During the lame-duck months to follow, the White House will probably flood the Senate Judiciary Committee with nominations, hoping to use its majority while it still can.

But doing so would also force the hand of Senate Republicans, who could walk away from committee meetings, preventing a quorum and a vote. As Wheeler said, there are ways to foul up the works.

"The Ted Cruz wing of the party does have ways of shutting things down," he said.

Wheeler expects any nominations not submitted this year to be brought up after the new year. This is not McDonough's only chance.

But these are strange and angry times.

"This is uncharted territory," said Wheeler. "The polarization is more intense. We can't be sure the old rules that used to apply will any more."

Contact David Cook at dcook@timesfreepress.com or 423-757-6329. Follow him on Facebook and Twitter at DavidCookTFP.

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