Editore"s Note
Tilting at Windmills

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September 9, 2010

CRISIS ON THE COURTS.... Supreme Court Justice Anthony Kennedy recently noted the problems with the Senate's inability to confirm judicial nominees. "It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy said. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

That conclusion is clearly true, though I'm not sure if I'd attribute the problem to "congressional indifference." Policymakers care a great deal about the issue, which in turn leads to the fights that bring the confirmation process to a standstill.

The result is scandalous: "A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago."

The American Constitution Society, Center for American Progress, and the Constitutional Accountability Center released a memo on this yesterday, detailing the "crisis" on the courts, resulting from "rampant filibusters, anonymous holds, and constant procedural delays."

It paints an ugly picture, in which President Obama's nominees simply can't get votes, because Republicans refuse to allow them. While the White House has often been too slow to send nominees to the Senate, once those nominees are there, they're subjected to a ridiculous process that leaves them in indefinite limbo. From the report: "On average, President Bush's appellate court nominees waited an average of 24 days to be confirmed after being favorably reported out of the Judiciary Committee, but President Obama's appellate nominees wait an average of 116 days."

Making matters worse, Senate Republicans frequently delay consideration of uncontroversial nominees for months, only to see those same judges get confirmed unanimously.

There is no modern precedent for such nonsense.

Why should you care? Because there are real-world consequences.

Much attention gets paid to Supreme Court nominees, deservedly so, but the lower federal courts are truly "the courts of last resort" for most Americans. These courts are where everyday people turn to uphold their rights -- where they turn for justice.

When vacancies on these courts go unfilled, there are not enough judges to handle the workload. In the Second Circuit, ten judges are handling the work of thirteen. In Colorado, five district court judges handle the work of seven. Many of these courts are already completely overworked: Justice Kennedy highlighted the Eastern District of California, where five judges are handling a workload of fifteen judges. Still, a nominee to that court, Kimberly Mueller, who was reported out of the Senate Judiciary Committee in early May without opposition, has now been waiting four months for a vote on the Senate floor, with no end in sight. In fact, more than half of the currently pending nominees have been nominated to fill seats declared "judicial emergencies" -- vacancies that severely threaten a court's ability to do its job.

These vacancies needlessly delay justice for thousands of Americans. According to the Administrative Office of the U.S. Courts, the federal judiciary now requires nearly nine months to resolve a single civil case, and much longer if the case is appealed or if it requires a full trial on the merits. This long wait for justice will skyrocket even further if judicial vacancies are not filled.

When the Senate returns next Monday, there should be no more delays for delay's sake. If a senator objects to a nominee, he or she has the right to vote "no." But justice cannot be held hostage any longer by senators who simply refuse to cast their votes.

I'd just add that this is bound to be even worse next year, when the Senate's Democratic majority is smaller, if it exists at all.

Steve Benen 10:45 AM Permalink | Trackbacks | Comments (14)

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Mass recess appointments. Let's make it a campaign issue and make sure every Dem candidate attacks the other side on this issue.

Best defense is a good offense.

Posted by: bdop4 on September 9, 2010 at 10:56 AM | PERMALINK

Why ISN'T this an issue? The voters elected a President in 2008, the Republican congress decided somehow that he was illegitimate and NOT WHAT THE PEOPLE wanted, opposed him on everything and now want to repeal the 17th amendment so you can't vote for your Senator. WHAT IS WRONG WITH THESE PEOPLE??? I'm talking about the VOTERS??? Do they truely NOT know? Get out there and talk it UP!!!

Posted by: SYSPROG on September 9, 2010 at 10:59 AM | PERMALINK

What to do about this? Republicans are irresponsible obstructionists, make that known. But for crying out loud, use the tools the majority has in the Senate to make them pay a price for this. If Reid could not do better than a judicial appointment delay 5X greater for Obama than Bush with 60-59 senators, what would it take to empower Senate Democrats to fight Republicans effectively? It's embarrassing.

One might assume that under Bush Democrats were just nicer about these things and moved his nominees along. Or one could assume some other things . . .

The "we're nicer" line hasn't worked much, by the way.

Posted by: angler on September 9, 2010 at 11:03 AM | PERMALINK

Again more proof that Republicans do not want government to work. They WANT government to FAIL. This has been the long turn goal of the party since at least 1980 if no sooner.

The rule of law means little to most of their leadership. Eight years of Bush should have taught the country that. We had an AG who spent years keeping everything 'national security' (with its every expanding definition) related OUT of the courts.

Posted by: thorin-1 on September 9, 2010 at 11:10 AM | PERMALINK

If I were Obama I would cfall a major press conference evrey day and point out the fact of this egregious obstructionism until the assholes start doing their jobs.

Posted by: Gandalf on September 9, 2010 at 11:12 AM | PERMALINK

I recall the GOPers saying, several months ago, that they wouldn't delay votes if Obama would just reappoint Bush nominees that weren't approved by the time Obama took office.

Honest, they said that.

Posted by: K in VA on September 9, 2010 at 11:31 AM | PERMALINK

The Republicans don't believe in the rule of law. The Bush Administration was proof of that. If GWB had "suspended the Constitution" and "declared martial law" as third-world dictators do, I would not have been surprised. Irate, but not surprised. Destroy government at every level has been their agenda since Reagan. The Judiciary is part of the government so it, too, has to be destroyed. It can be done by appointing judges who shill for corporations or by refusing to fill vacancies.

Posted by: jpeckjr on September 9, 2010 at 12:02 PM | PERMALINK

The first commenter has it exactly right. First chance he gets, Obama should recess appoint EVERYONE. For everything. Let him be the first president in history to have zero pending nominees before the Senate.

Done right, this could also help with the election.

STEP ONE: press conference. "I'm here to talk about the Republicans' absolute refusal to do their jobs..." followed by a few examples of the preposterously qualified people who are getting blocked from doing important non-ideological jobs. "I call on Senate Republicans to just once put aside their mindless obstruction and just once let these fine men and women serve their country" (etc. etc.)

STEP TWO: Republicans predictably refuse. "Radical socialists! Judicial activists! Where's my highway money?"

STEP THREE: nuclear recess appointments.

STEP FOUR: five seconds later, go on teevee: "Politics is the art of the possible. But after two years I have concluded that it is not possible to get Senate Republicans to do their jobs. Therefore, I have done their work for them as best I could. I am willing to face electoral defeat. I am willing to face the consequences of my actions. I am not willing to suffer the consequence of their inactions..." etc. etc.

Long story short, American voters like ballsy, aggressive, attention-grabbing moves. If it happens to be in the service of good, so much the better.

Posted by: Matt on September 9, 2010 at 12:03 PM | PERMALINK

This situation is at least partially Rahmbo's fault, according to Scott Horton:

Rahm Emanuel's Competency Test

Posted by: msmolly on September 9, 2010 at 12:30 PM | PERMALINK

This is a serious issue, but I think that the broader Republican strategy is being overlooked. One of the articles Benen linked to a couple of days ago on this the issue noted that to push these judges through would require some time-consuming work on Reid's part. This would take legislative time away from the legislation he is trying to move, which presents Reid with a choice of either spending his precious time on either overcoming the stall campaign or moving forward on the legislation the Democrats want to pass this session; either way, the Republicans succeed in frustrating part of the Democratic agenda. I think that Reid's choice is the correct one, though I admit that it's a debatable conclusion.

Posted by: mbk114 on September 9, 2010 at 12:57 PM | PERMALINK

Recess appoint anyone waiting more than six months.
Set a policy.
Sure Dubya appointed people, but they were never up for a vote. The GOP would LOVE to claim Democrats are no better than they are. Democratic recess appointments should hold to rigid absurdly reasonably criteria.

That said, Benen speaks of those waiting for justice. WHERE are they waiting? On parole? On the streets?

Do the Republicans think it unimportant that alleged criminals be sent to jail promptly? This is SOOOO "soft on crime". Sure, lots of tough talk about cops, but once the cops catch the bad guys, the GOP has dismantled the method by which we can put them in jail.

Campaign fodder, anyone?

Posted by: toowearyforoutrage on September 9, 2010 at 4:23 PM | PERMALINK

Federal judges are appointed for life. The Republicans want to continue stacking the benches of America with their own radical jurists. Since they believe that Obama will be a one-termer, their plan must be to stall until they can capture the White House.
Only twenty-seven months or so to go, they think. If they gain seats next election, the stall gets even easier. This is a long-range strategy as well as a shorter term scheme to frustrate Obama.

Posted by: oldswede on September 9, 2010 at 10:37 PM | PERMALINK

You gotta love Justice Kennedy. He comes out with a horrendous and fucked political decision like "Citizen's United" that wreaks havoc with the political system and then complains about politics getting in the way of judicial appointments. Memo to Justice Kennedy":"Suck-On-This."

Posted by: jonerik on September 10, 2010 at 9:51 PM | PERMALINK

This is happening because power hungry crazed Republicans want to stall the process so as to hope a chrsitian conservative president can appoint wacko judges like Janice Rogers Brown, William Pryor, etc. so their extreme far right social agenda can be advanced..

President Obama needs to nominate more judges, re-nominate Goodwin Liu yesterday, and pressure Reid into getting the full senate votes on these nominees...

There are countless reasons to despise Republicans, but what they're doing w/regards to judicial nominations is top of the list..

Please people, vote straight Democratic tickets in November...

Posted by: Rick on September 11, 2010 at 11:55 PM | PERMALINK



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