Editore"s Note
Tilting at Windmills

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December 13, 2010

THE JUDICIARY MATTERS.... Regular readers may have noticed that I've been fixated for a long while on the vacancy crisis on the federal bench, and the fact that Senate Republicans have used tactics unseen in American history to prevent votes on President Obama's judicial nominees. Today, however, this problem seems especially relevant. Josh Marshall noted:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Quite right. This isn't a sexy or high-profile issue, but conservatives have made a concerted effort over the last couple of decades to shift the judiciary sharply to the right, in part with very conservative nominees from Republican administrations, and in part by doing everything possible to block nominees from Democratic administrations.

And today's ruling helps make the motivations for such an approach clear.

On a related note, there are currently 38 pending judicial nominees who've already been approved by the Senate Judiciary Committee. Nearly all of them were approved with bipartisan support, but Republicans have balked at allowing floor votes on any of them in the lame-duck session.

With the prospect of recess appointments hanging overhead, Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) are working on some kind of deal that would allow floor votes on 19 of these 38 -- exactly half of the jurists awaiting confirmation -- with the most progressive nominees being left out of the mix.

Jamelle Bouie is entirely correct: "With a huge number of vacancies on the nation's lower courts, some judges are better than none, but it doesn't hurt to note that this is a bad deal."

And just for good measure, I'd like to reemphasize an item from a month ago. Given that the Democratic majority in the Senate won't be able to legislate much with a Republican-led House anyway, it would make a lot of sense if next year's Senate makes judicial confirmations a very high priority.

To be sure, Senate Republicans will do what they've been doing -- slowing everything down, blocking as many nominees as they can. But don't forget, the Senate will have nothing else to do for the better part of two years. Over the last two years, Reid and the Democratic leadership had a lengthy to-do list, and couldn't eat up the calendar on nominees. GOP obstructionism meant it took three days for the Senate to consider one nominee, during which time the chamber could do nothing else, so more often than not, Reid just didn't bother.

But that won't be much of a hindrance in 2011 and 2012, when the entire lawmaking process goes from difficult to impossible. Why not use that time to start dealing with the vacancy crisis on the federal courts?

Steve Benen 3:15 PM Permalink | Trackbacks | Comments (9)

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Comments

Perhaps this issue is a good reason for Democrats to still pursue filibuster reform? And judges aren't the only ones being held up either.

But of course, this is the Democrats we're talking about here, and Reid has proved as incompetent as Obama when it comes to political strategy and political hardball.

Posted by: Will on December 13, 2010 at 3:26 PM | PERMALINK

Excellent point, Mr. Benen. The dem majority might as well spend its time on things that can be done.

Of course, if they were smarter than they've shown us before, they would use the opportunity to bring the judicial crisis more into the public limelight than it has been. Not that they will actually do that.

Posted by: Shade Tail on December 13, 2010 at 3:29 PM | PERMALINK

Obviously, it behooves Obama and Reid to make this a more public issue, but a competent media highlighting the republicans' insane behavior would go a long way to solving this issue.

I seem to remember senate dems threatening to filibuster just 10 of Bush's judges, and it was treating like a national tragedy by the press.

Conversely, republicans have engaged in historic and unprecedented obstructionism during Obama's first two years in office, while the worthless media has largely ignored it.

Posted by: Holmes on December 13, 2010 at 3:40 PM | PERMALINK

I love how the "no one could have predicted" excuse never seems to get old. Of course, there were people who took seriously the idea that the individual mandate could be ruled unconstitutional by the wingnut faction on the bench. It was one of the reasons we told you that the health care reform effort was a bad policy proposal.

No one could have predicted. Those words will NEVER get old, will they?

Posted by: s9 on December 13, 2010 at 3:44 PM | PERMALINK

Why haven't these judges been recess appointed? Judicial nominations and appointments are one place where the public doesn't care no matter HOW much outrage the right wing machine puts out. That would be the place for the president to pander to his liberal base. But he simply won't do it.

Posted by: Raptor on December 13, 2010 at 3:45 PM | PERMALINK

An agreement will be announced that through bipartisanship, all judicial vacancies will be filled immediately, with a single up or down vote on all nominees at once. The nominees will be carefully selected by a committee of prestigious legal scholars from the Heritage Foundation.

Posted by: GringoNoraca on December 13, 2010 at 4:23 PM | PERMALINK

Federal judges deal with "white collar" crime, the bane of white collar Republicans. Need I say more?

Posted by: DAY on December 13, 2010 at 4:30 PM | PERMALINK

The first poster beat me to it. This is a deal done in hopes of forestalling changes to the filibuster. The gang of 12 fucked over chances of the nuclear option killing the filibuster. That was, overall, a bad deal. The senate rules have to change.

They won't. I hope I am wrong.

Posted by: catclub on December 13, 2010 at 5:24 PM | PERMALINK

A bit more information on "Judge" Hudson:

Henry E. Hudson, the federal judge in Virginia who just ruled health care reform unconstitutional, owns between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform. You don't say!

As the Huffington Post and others first noted last July, Hudson's annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income).

Campaign Solutions was instrumental in the launching of Sarah Palin's PAC (though Palin has since split with the firm), and Ken Cuccinelli, the Virginia attorney general who filed the lawsuit that Hudson ruled in favor of today, paid Campaign Solutions $9,000 for services rendered in 2010.

Anyway, if you're curious why Hudson, who was appointed to the bench by George W. Bush, ruled that health care reform's individual coverage mandate violates the constitution, it has absolutely nothing to do with the fact that he as a major shareholder in a political messaging firm that gets paid to argue that health care reform's individual mandate is unconstitutional. It's really just that he's a Republican.

Posted by: TCinLA on December 13, 2010 at 7:33 PM | PERMALINK
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