Chai Feldblum

At least one senator has put a secret hold on the confirmation of openly gay law professor Chai Feldblum and four others to the Equal Employment Opportunity Commission (EEOC).

A Senate committee approved all the nominations, including Feldblum’s, as a group in December.

A spokesperson for Senate Majority Leader Harry Reid said Monday that Reid is “working to get an agreement” with Republicans to consider the nomination of Feldblum and other EEOC commissioners.

There has been no public indication yet of which senator has placed the hold on the EEOC nominees’ full Senate confirmation vote.

Senator Richard Shelby (R-Ala.) put a hold on more than 70 nominations last month to leverage support for sending certain Defense contracts to his home state. But following negative publicity surrounding the tactic, he removed “all but a few,” saying, through a spokesperson, that he was keeping holds only on those “directly related” to national security issues. The names of those nominees have not been made public.

There is no indication in the Congressional Record or the Senate Calendar as to who has put the hold on the confirmation of Feldblum and the others. While the Congress recently enacted legislation to make it harder for senators to anonymously put such holds on confirmations and bills, there are still ways in which they can do so.

The “Honest Leadership and Open Government Act,” passed in 2007, requires that a senator placing a hold on a nominee or bill to notify in writing either the Senate Majority or Minority Leader of his or her intent to do so. Then, he or she submits a notice of this intent to the Congressional Record.

But, according to a Congressional Research Service report in March 2008, the legislation provides “limited circumstances” under which an anonymous hold can still be implemented. One way is by making a public statement; but, so far, no senator has made a public statement that he or she intends to block consideration of the EEOC nominations.

Another means is to “privately inform their party leader” and, if that party leader is in the majority, the “majority leader never requests” the matter be brought to the floor.

Numerous right-wing groups voiced opposition to Feldblum shortly after she was nominated, and some predicted that opposition would surface during her confirmation hearing. But it didn’t, at least in part because the chairman of the Senate Health, Education, Labor and Pensions Committee, which handled the nomination, met the controversy head on. Senator Tom Harkin (D-Iowa) asked Feldblum to explain why she had signed onto a 2006 statement that expressed a number of views on marriage, including support for polygamy.

“I do not support polygamy,” said Feldblum. “I am sorry I signed that document and I have asked that my name be removed.”

Still, Focus on the Family, the Traditional Values Coalition, the Liberty Counsel, the American Family Association, and a number of other ultraconservative groups signed onto a letter to the Committee, saying they “strongly oppose” Feldblum’s nomination. They said they believed she was a threat to religious liberty.

A position on the EEOC could put Feldblum in the position of being one of five commissioners to develop regulations for the Employment Non-Discrimination Act (ENDA), should that bill ever pass Congress.

“Ultimately,” said the CRS report, “it is up to the majority leader of the Senate—who sets the chamber’s agenda after consulting various people—to decide whether, or for how long, he will honor a colleague’s hold.”

One of President Obama’s judicial nominees is scheduled to be voted on by the full Senate Tuesday—Barbara Keenan to serve on the 4th Circuit U.S. Court of Appeals, which covers Virginia, Maryland, North Carolina, South Carolina, West Virginia, and the District of Columbia.

Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay. More recently, she wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.

In a recent op-ed essay, Senator Arlen Specter (D-Penn.) noted Republican “obstructionism” had delayed the confirmations of 46 executive nominees for at least three months and 45 for at least four months. Nine nominees, he said took six months or more to go from committee approval to a full Senate vote.

“The Senate can force a vote by resorting to the time-consuming step known as cloture, which takes up two days of the Senate’s time,” wrote Specter, in the February 25 essay, which appeared in the Scranton Times-Tribune. “If cloture were to be invoked in each of the 67 currently pending nominations that have been approved by committee, it would take most of the year to deal with nominations. This is an intolerable imposition on the Senate’s time and business.”

The March 2 Senate calendar indicates there are 86 nominees awaiting confirmation, and a cloture vote is scheduled for the Keenan nomination.