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Tilting at Windmills

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October 1, 2010

OBAMA REMINDS SENATE ABOUT JUDICIAL VACANCY CRISIS.... Before the Senate adjourned, Republicans agreed to confirm 54 pending nominees who've been waiting to get to work in the Obama administration. The GOP refused to act, however, on 23 judiciary nominees who've been waiting for months for an up-or-down floor vote, but who've been blocked by the Senate minority.

President Obama reminded senators yesterday that this can't continue.

President Obama has once again complained to lawmakers about the slow pace of judicial confirmations, calling the blocking of his nominations "a dramatic shift from past practice that could cause a crisis in the judiciary."

The strong language comes in a letter to the bipartisan leadership of the Senate sent late Thursday, a copy of which was obtained by The Caucus. But the president's anger is aimed primarily at Republicans, who have consistently blocked his nominations.

"By denying these nominees a simple up-or-down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need," Mr. Obama writes in the letter.

"If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome," he added, but said that the current situation "does a disservice to the greatest traditions of this body and the American people it serves."

Truer words were never spoken. Indeed, the administration seems to be considering this with an added sense of urgency lately. Just this week, Attorney General Eric Holder had an op-ed on the subject, explaining that "our judicial system desperately needs the Senate to act.... The federal judicial system that has been a rightful source of pride for the United States -- the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law -- is stressed to the breaking point."

There also seems to be a growing recognition in the media about this. Dahlia Lithwick and Carl Tobias made the case this week that the vacancies in the federal courts is literally dangerous; the L.A. Times editorial board is urging Republicans to "quit stalling"; Politics Daily called the fiasco "embarrassing" to the Senate; and The Hill ran an item accurately characterizing this as an "emergency."

I'm glad to see this getting some attention, but the next step is the GOP caucus actually letting the Senate function for a change. If Republicans don't like the various nominees, they can and should vote against them.

But simply bringing the entire process to a generational standstill is untenable. I know this isn't the sexiest issue, but there's a crisis on the courts, and it's the direct result of Senate Republicans engaging in tactics that no one has ever seen before. It is no exaggeration to say the status quo is the worst it's ever been -- the Alliance For Justice recently reported that President Obama "has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history."

Supreme Court Justice Anthony Kennedy recently noted the broken process, and argued, "It's important for the public to understand that the excellence of the federal judiciary is at risk."

Steve Benen 3:30 PM Permalink | Trackbacks | Comments (13)

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There is a crisis alright, in the legislature.

Posted by: Trollop on October 1, 2010 at 3:53 PM | PERMALINK

Bear in mind that the GOP, particularly under Dumbya, has been packing the lower courts with conservatives and this has affected the lives of countless Americans--not only those who litigate issues, but all those who find themselves in similar situations. Only the smallest fraction of cases get to the Supreme Court and law is literally made every day in the lower federal courts. The GOP simply does not want to see all the progress it has made in converting the federal judiciary into an ideological battleground slowed by Obama appointees. It is as if they are simply going to ignore the electoral decisions made by the voters in 2008. Of course as with everything else these past 2 years, the GOP has been emboldened by the Democrats refusal to fight back.

Posted by: terry on October 1, 2010 at 3:56 PM | PERMALINK

This is yet another reason why Sen. DeMint is wrong about how "complete gridlock" in Congress would be great for business (via ThinkProgress). In order for business to function properly in this country, we need an efficient legal system, one that is staffed with enough judges to handle the work.

Posted by: meander on October 1, 2010 at 4:50 PM | PERMALINK

From bmaz over at Emptywheel:

Barack Obama has displayed a shocking and reckless disdain for his duty to stock and replenish the Federal Judiciary. There are currently 105 Federal judicial seats vacant, and that is not including Vaughn Walker's yet; and a grand total of 48 nominees pending, with 25 of them pending in the Judiciary Committee and 23 having already been passed out of Judiciary and placed on the Senate Executive Calendar (although Harry Reid has not scheduled a floor vote for a single one of them). This is simply inexcusable and a dereliction of duty by the Obama Administration for having named nominees for less than half, well less than half, of the empty judicial seats at a time when the Federal Judicial Conferences are declaring emergencies and begging for relief. It is also inexcusable for Harry Reid to have not wielded his power as Majority Leader better so as to move nominees that have come out of committee.

And now OBAMA is complaining? Gimme a break...

Posted by: msmolly on October 1, 2010 at 4:50 PM | PERMALINK

The Senate is turning into a Weapon of National Destruction.

As a reward for bringing it up, the R's probably won't confirm another Judge/Justice for the remainder of Obama's first term.

Posted by: bcinaz on October 1, 2010 at 5:12 PM | PERMALINK

Still wondering how the Royal Moron got everything he wanted in his presidency--wars, conservative judges, et al-- and Obama has trouble getting anything. Think maybe the Dums are spineless, ineffective and enabling?

Posted by: Frak on October 1, 2010 at 5:17 PM | PERMALINK


If Obama, whom I respect greatly, is so worried about unfilled judiciary positions, why oh why did he (presumably) sign on to Reid's bizarre forfeit of recess appointments as part of a "deal" to affirm some 70+ other Obama nominees held up by the obstructionist, anti-America GOP numbskulls?

If he didn't, why is he letting Reid make presidential decisions?

Reid is not the president, and not a strong leader (however sincere he may sometimes seem). He's having to fight hard just to hold his seat against a person utterly unqualified and out of touch with reality. He's not the president and the Constitution specifically and unarguably gives the right to make recess appointments to the president.

Posted by: SF on October 1, 2010 at 6:48 PM | PERMALINK

Ms Molly: when you criticize Reid, remember that every action that Obama takes in the Senate has been filibustered by the Republicans. If Reid wants a vote on any nominee, he has to get 60 votes (in a Senate in which the 41 Republicans are incredibly unified), then schedule 30 hours of debate before a final vote can be taken. There was a lot on the Senate calendar this year, and Reid probably thought there were other things he needed to get past, although I would have loved to have seen Obama's judicial nominees (even if only the 48 of them) be passed by the Senate.

SF: with this deal, Obama does not have to re-submit his nominees to the Senate in the next session. If he had to do so, each nominee would have had to go through committee hearings again. This deal avoids that.

Now, if we can only figure out a way to pass these judges through in the lame-duck session...

Posted by: rayspace on October 1, 2010 at 9:19 PM | PERMALINK

"Truer words were never spoken. Indeed, the administration seems to be considering this with an added sense of urgency lately."

funny how things get to be urgent when you neglect them for two years...

If republican obstructionism is a problem (and it is) then why has the whitehouse been essentially silent on the issue until just a few weeks before the midterms? Might this not have been something to, I don't know, mention occasionally to the press? Maybe try to exert some pressure on the GOP back when it mattered?

Waiting until now to bring it up looks like whining and does nothing to help as the GOP is insulated from public pressure by the upcoming election which is pretty much guaranteed to go well for them.

Posted by: Tlaloc on October 1, 2010 at 9:54 PM | PERMALINK

Why are the Republicans pro-criminal?

Posted by: Tigershark on October 1, 2010 at 10:19 PM | PERMALINK

"Still wondering how the Royal Moron got everything he wanted in his presidency...Think maybe the Dums(sic) are spineless, ineffective and enabling?" Frak @ 5:17 PM.
Things were passed during the BushII administration because the Democrats, unlike their Republican counterparts, were attempting to help govern this country. Silly idea, I know. They should have done nothing but obstruct, obstruct and obstruct. I'm certain that would have cheered you up immensely, as well as giving you lots to complain about when the Republicans swept to victory in 2006 and 2008, partially because of "Democratic obstructionism". If you can't see the difference between what the Republicans are doing NOW and what Democrats did during the previous administration, I suggest your sophomoric reference to the Democrats applies to someone closer to home. Possibly even to using the very keyboard you typed on...

"Might this not have been something to, I don't know, mention occasionally to the press?" Tlaloc @ 9:54 PM.
Watched a lot of news programs on television, haven't you? Any mention of the logjam in nominees would have been accompanied by such adjectives as "whined", "scolded" (only old ladies 'scold'), bemoaned (only elitists 'bemoan') and so on. Sometimes, when the deck is stacked against you, it's better to keep quiet, you know. Oh, wait...
By the way, if you're going to refer to the administration by making a personal noun out of "White House", you really should use capital letters. What they teach in school nowadays...

Posted by: Doug on October 1, 2010 at 10:25 PM | PERMALINK

Oh noes!

A sternly worded letter.

That'll get 'em quaking.

Posted by: terraformer on October 2, 2010 at 9:20 AM | PERMALINK

If this is more than empty rhetoric, where were all the recess appointments?

If it were such a crisis, if Pres. Obama is engaged in anything other than self-sabotage, I'm confident we would have seen a) stronger language much sooner, and b) recess appointments.

My sense is that Obama's ability to implement an inherently establishment agenda depends on a judicial system that just doesn't function well, or at all.

Posted by: johnsturgeon on October 2, 2010 at 11:50 AM | PERMALINK



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