Editore"s Note
Tilting at Windmills

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January 1, 2011

ROBERTS IS RIGHT, BUT WILL SENATE REPUBLICANS LISTEN?.... Thirteen years ago today, then-Chief Justice William Rehnquist raised a few eyebrows on New Year's Day with some unexpected criticism. Rehnquist, an unabashed conservative, was frustrated by Senate Republicans blocking President Bill Clinton's judicial nominees, and said the political tactics threatened "the quality of justice" in the United States.

Late yesterday, Rehnquist's even-more-conservative successor, Chief Justice John Roberts, said the status quo on the Senate's handling of judicial nominees is untenable, and urged lawmakers to solve "the persistent problem of judicial vacancies."

"Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes," he said.

The upshot, he said, was "acute difficulties for some judicial districts."

The chief justice noted that the Senate recently filled a number of vacancies. Including 19 recently confirmed judges, the Senate has confirmed 62 of Mr. Obama's nominees. There are 96 federal court vacancies, according to the Administrative Office of the United States Courts.

"There remains," the chief justice wrote, "an urgent need for the political branches to find a long-term solution to this recurring problem."

Roberts added that the need for Senate action is "urgent."

It's worth emphasizing that Roberts, like Rehnquist, was not specific in assigning blame to one party for the confirmation mess. But such identification was unnecessary -- it's obvious now, as it was in 1998, that it's the dangerous tactics of Senate Republicans that have undermined the process and created a vacancy crisis.

I have a hard time imagining the GOP caring about the chief justice's concerns, but I suspect Senate Dems will use Roberts' report quite a bit this year, urging Republicans to be at least a little less obstructionist.

Indeed, soon after Roberts' report was released, Senate Judiciary Committee Chairman Pat Leahy (D-Vt.), issued a related statement that noted, among other things:

"Regrettably, in this Congress, Republicans compounded the vacancy crisis by turning away from the Senate's long-held tradition of promptly considering non-controversial nominees, even those supported by Republican home-state Senators. That obstruction led the Senate to confirm the lowest total number of judges for the first two years of a presidency in the last 35 years. Meanwhile, current and announced judicial vacancies across the country total more than 110. Democrats tried to turn the page on the obstruction of the 1990s when the Democratic majority of the Senate worked to confirm 100 judicial nominees in the first two years of the Bush administration. Republicans have set that progress back.

"I hope that Chief Justice Roberts will continue to join those on both sides of the political aisle who are urging the Senate to confirm qualified judicial nominees in the new Congress. The American people turn to our courts for justice. Democrats stand ready to address the needs of the federal judiciary; I hope Republicans will join us."

Just for good measure, let's also note how high this should be on the Senate Dems' priority list this year and next. Given that the Democratic majority in the Senate won't be able to legislate much with a Republican-led House anyway, there should be plenty of time for judicial confirmations.

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 very little 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 at least 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.

Steve Benen 9:05 AM Permalink | Trackbacks | Comments (19)

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I don't think they'll listen.
If, as you say (and I agree with you), that there'll be little for the Senate to do since there's still a majority of D's there to over-ride the coming tide of right-wing lunacy coming from the House, the RepubliConfederate Senators can go home and tell constituents how they're at least blocking that Socialist/Fascist/Communist/Urban Presidents LIBERAL judges from 'activisting' against the Constitution.
Obstruction and over-reach is now ingrained in the blood - until a RepbuliKlan President is in office, and then they will gladly turn into the Amen chorus, screaming for an up and down vote that they didn't allow themselves.

Posted by: c u n d gulag on January 1, 2011 at 9:21 AM | PERMALINK

Another reaction carved into the political landmarks would be Paul Szep's putting green with action figures Nixon and spirited barking dog Agnew .
From the august Nixon "I hear the people of Massachusetts are revolting ."
To the pithy Agnew "Yes aren't they"
Let them eat back log cases seems a bit prurient for our prim Republican theologists . A tight collar will hold the free will and expression of the American voting public from the air it needs . Without the proper nihilism you can't have the proper atmospherics for blaming the Armageddon on the insistence of those (Americans) who would destroy us (Republicans) .

Posted by: FRP on January 1, 2011 at 9:52 AM | PERMALINK

Clearly, Roberts meant
that the Democratic picks for judgeships were far too librul, and that was the problem. Expect the wise old men of the DC punditocracy and media talking heads to echo this meme. After all, "they all do it."

This year, my hope will be on (1) reforming the Senate rules per Udall to prevent holds and make filibustering more difficult, and (2) more recess appointments, and I'm going to continue to call and write the President and my senators (one of whom is Udall!) to encourage them to do so.

I've resolved to keep impotent hand-wringing to a minimum in 2011.

Posted by: zandru on January 1, 2011 at 9:52 AM | PERMALINK

If nothing else, this should provide more cover for recess appointments. If the Senate fails to fulfill its constitutional obligations and the result is "acute difficulties for some judicial districts," then the president has an obligation to act.

Posted by: delNorte on January 1, 2011 at 9:52 AM | PERMALINK

Happy New Year to all. How about a national referendum to remove all formal power from the U.S. Senate and make it into our own version of the English House of Lords. It would be easy to make the case based on past and recent performance (or nonperformance). Just a passing thought before the hangover remedies kick in.

Posted by: max on January 1, 2011 at 9:55 AM | PERMALINK

Why not attach the report to the recess appointments of all the vacant positions?

Posted by: SW on January 1, 2011 at 10:18 AM | PERMALINK

Correct me if I'm wrong, but didn't the Democrats control the Senate. If so, then how can the obstructionist tactics of the Senate Republicans? The Democrats didn't even bring many of these candidates to a vote.

Posted by: Michael on January 1, 2011 at 11:01 AM | PERMALINK

Happy New Year to all. How about a national referendum to remove all formal power from the U.S. Senate and make it into our own version of the English House of Lords. It would be easy to make the case based on past and recent performance (or nonperformance).

Great idea. However, there is no national referendum process, Relegating the Senate to the political scrap heap would be a great new year's tonic. Keep it as an 18th century relic, but don't let it do anything. Just like the British monarchy.

As we become more of a corporate oligarchy the Senate, which is already an exclusive club of millionaires (and a few celebrity pretty boys like Scott Brown), could be seen but not heard. The lobbyists do all the real work as it is.

Once a year, on July 4th, we can parade the toothless faux solons of democracy in gowns and powdered wigs, in horse drawn carriages, as the anachronisms they are, down Pennsylvania Avenue to the Capital, their 'club', where they can sit in overstuffed chairs smoking cigars and sipping whiskey. And never voting on anything except how many sexual interludes should be permitted each Senator in a given year.

One can have a fantasy or two on New Year's Day, can't one?

Posted by: rrk1 on January 1, 2011 at 11:30 AM | PERMALINK

Just as reality has a liberal bias, so does the judicial system...

My message to my Senators for Jan 5 is that the final judgement on the new Senate rules is whether they'll staff the judiciary this Congress or not. Our Republic cannot function without the third branch.

Posted by: ElegantFowl on January 1, 2011 at 11:48 AM | PERMALINK

The Dems should hoist the Thugs on their own petard. Keep the "do nothing" express rolling, let them overreach with crazy hearings, goofy legislation from the NutHouse, constant threats of government shutdowns, and run out the clock until 2012. The goose steppers will vote Republican, as always, but everyone else will see the sobering consequence of putting these idiots back behind the wheel.

Posted by: max on January 1, 2011 at 12:18 PM | PERMALINK

Reid should just bring up judicial nominations and other nominations up to the floor and just use the floor time for that since no other legislation is going to be happening in the Senate any ways.

Reid did say that the next two years is going to be easier on him then the last because the Senate won't be pushing legislation.

Posted by: Maritza on January 1, 2011 at 12:22 PM | PERMALINK

per Michael: "Correct me if I'm wrong, but didn't the Democrats control the Senate..."

Well, that's apparently what most Americans think, and what the Shamestream Media doesn't mind pushing. Few people understand, much less care, how current Senate rules empower the minority and the individual in the Senate. One (1) Senator can block ANYTHING, without review, without the possibility of a vote, and without even being on the record as having done so. The "filibuster" no longer consists of principled individuals standing and speaking, nonstop, for days on end - it's just a notice to the leadership that one exists, and it continues in effect until the leadership can put together 60 or more votes to permit that there be a (majority rules) vote.

This is why the much-diminished Democratic majority is looking to change the Senate rules as the number one order of business when the new Congress is sworn in - something which they can ONLY do with a simple majority vote if it's the very first thing on the agenda. If this fails, it's another 2 years before they get to try again. Seriously - if a 60-vote supermajority is not enough to conduct the business of government under the way the Senate works, it's totally broken.

Forgive me for blathering on and on, but this is, as the Veep might say "F**ing important", and the more people who understand what's going on, the better.

Posted by: zandru on January 1, 2011 at 12:22 PM | PERMALINK

"But that won't be much of a hindrance in 2011 and 2012, when the entire lawmaking process goes from difficult to impossible."

That's delightfully Pollyannaish.

Posted by: hells littlest angel on January 1, 2011 at 12:23 PM | PERMALINK

Sorry Michael, until the filibuster reform rules kick in, the minority can stop a nomination, any nomination, even with a single hold.

Posted by: Michael on January 1, 2011 at 1:48 PM | PERMALINK

Over the last thirty years the republicans have succeeded in moving the judiciary significantly to the right. Their highest priority is to replace Obama with a republican president in 2012. They have every incentive in the world to prevent Obama from appointing any judges so the positions can remain open until they are back in power, regardless of the impact on the country. This continues their simple-minded priority on party over country.

Posted by: wordtypist on January 1, 2011 at 3:17 PM | PERMALINK

Is the pope Jewish?

Posted by: navamske on January 1, 2011 at 4:53 PM | PERMALINK

Roberts does not have the courage to define Senate "partisanship" for what it is-nihilistic, take no prisoners, total republican obstructionism.

Posted by: bob h on January 2, 2011 at 6:25 AM | PERMALINK

Hmm ... didn't this tradition of obstructing court nominees begin with Ted Kennedy attacking Robert Bork? And didn't it continue with the attacks on Clarence Thomas? Why, yes, it did! And didn't the Senate Democrats prevent votes on Miguel Estrada and Charles Pickering? Why, yes, they did! One party is to blame all right, and it isn't the GOP.

Posted by: EllisWyatt on January 2, 2011 at 8:51 AM | PERMALINK

@Ellis Wyatt
Try harder. Take an historical peep at WHY Bork's nomination was blocked. His role in Nixon's "Saturday Night Massacre" showed him to be an unqualified candidate for the vacancy. You know, rule of law and all that. Throwing around that "awful" Ted Kennedy's name is merely ad hominem broadside.

Justice Roberts, one of your own, states that the process is broken. How about we just fix the problem, eh?

Posted by: Chris C on January 2, 2011 at 9:32 AM | PERMALINK



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