Editore"s Note
Tilting at Windmills

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March 18, 2011

ON JUDGES, 'PROGRESS' IS RELATIVE.... Before heading out yesterday, the Senate voted to confirm Amy Berman Jackson as a federal district court judge in D.C. The final vote was 97 to 0. It followed a vote on Monday to confirm James Emanuel Boasberg for the same district bench (confirmed 96 to 0), and a vote last week to confirm Max Oliver Cogburn, Jr. to a federal district court in North Carolina.

Given this flurry of activity, it's tempting to think the Senate is making real progress on institutional duties that were neglected in the last Congress. And in a way, that's true -- there have been meaningful steps in the right direction, and I'm delighted.

But as is often the case in this political environment, "progress" is relative.

Yesterday's vote, for example, was a unanimous confirmation vote, but Judge Jackson had to wait nine months for an up-or-down vote on the floor. The district court seat she'll fill has been vacant for more than four years.

Jackson's confirmation is evidence of "progress" only to the extent that the status quo is hopelessly ridiculous.

There are, despite the recent Senate actions, currently 94 vacancies on the federal bench. It's a relief when the chamber manages to do anything constructive, but as Jonathan Bernstein recently noted, we're looking at a good news/bad news dynamic.

The good news is that the deal struck by Harry Reid and Mitch McConnell seems to be holding, and the Senate seems to be processing three judges a week.

The bad news is how limited that deal is. Republicans are still filibustering every single nomination; the only difference now is that on those nominees for which Democrats have the votes to defeat the filibuster, Republicans are not dragging their feet and eating up extra Senate floor time. Two confirmations yesterday were unanimous, and one was a voice vote. In fact, so far this year, every confirmation has either been unanimous or by voice vote. [...]

In other words: nice to have a few of the easiest confirmations processed, but this is still bad news overall.

Agreed. The vacancy crisis on the courts remains very real. It's untenable and arguably dangerous.

Republican-appointed judges want the Senate to do more; the Federal Bar Association wants the Senate to do more; even Supreme Court Chief Justice John Roberts wants the Senate to do more.

For much of the political establishment, this may seem like a routine partisan game. Democrats don't like to confirm judicial nominees from Republican presidents; Republicans don't like to confirm judicial nominees from Democratic presidents. It's just how the process goes.

Except, this is wrong. The vacancy rate simply doesn't get this high, and Senate minorities simply don't stand in the way of so many qualified nominees. This isn't normal, and if we expect the judicial branch to function as it should, it can't continue.

* Update: A special thanks to Glenn Sugameli at Judging the Environment, my go-to expert on judicial nominees and confirmations, for helping me with some of the background info I needed for this post.

Steve Benen 2:15 PM Permalink | Trackbacks | Comments (15)

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Well, 'justice delayed, is justice denied.'

And since Republicans have NO interest in any form of justice that isn't THEIR form of "justice," this isn't even par for the course, or a birdie - it's a "Double-eagle" or a "hole-in-one!"

Justice is supposed to be blind, swift and fair.

But Republicans want the scales that "Justice" carries to be tilted only to the right.

Posted by: c u n d gulag on March 18, 2011 at 2:25 PM | PERMALINK

This is fine with the business community and the movement conservatives. Neither wants the judicial branch to function.

Businesses are doing just fine proceeding as they wish, breaking laws, ignoring regulations, and buying politicians -- of both parties. There are only a handful of Senators not mostly or entirely beholden to corporations, notably financial ones. Nobody with an eye on national office doesn't know that the first stop is New York, and that funding from the financial community is the sine qua non.

And movement conservatives are perfectly happy with having no judicial function at all, except perhaps lower-court lock-em-up proceedings. Appeals courts are where wrongly convicted defendants get sentences overturned, and where unconstitutional laws are invalidated. They don't want either of those things to happen.

The Republicans have been at war with the Judiciary for decades. Since when is that news?

Posted by: bleh on March 18, 2011 at 2:29 PM | PERMALINK

I guess it's beside the point to ask when they're going to get to the circuit court nominees, or Goodwin Liu, right?

Posted by: rayspace on March 18, 2011 at 2:36 PM | PERMALINK

What on earth makes you think the Republicans want a functioning judiciary?

Posted by: KurtRex1453 on March 18, 2011 at 2:44 PM | PERMALINK

even Supreme Court Chief Justice John Roberts wants the Senate to do more.

This doesn't change your overall point, but John Roberts is the Chief Justice of the United States, not just the Supreme Court. He is the administrative head of all the federal courts. So when he is pointing to the crisis of the vacancies in the judiciary, he is speaking with quite a bit more authority than is implied.

Posted by: AA on March 18, 2011 at 2:49 PM | PERMALINK

If we appoint activist judges who promote sharia law, then the terrorists win.

Posted by: Al on March 18, 2011 at 2:55 PM | PERMALINK
Except, this is wrong. The vacancy rate simply doesn't get this high, and Senate minorities simply don't stand in the way of so many qualified nominees. This isn't normal, and if we expect the judicial branch to function as it should, it can't continue.

But, whether or not it is desirable, it will continue now that Senate minorities have established this new norm in the exercise of power, unless the power for such actions is taken away. The simplest way to remove this power would be a Constitutional Amendment providing that appointments of judges become effective unless the Senate, by majority vote, either rejects the candidate within 90 days of the nomination or, again by majority vote, extends its period of consideration by not more than 30 days at a time. (Obviously, variations in the exact timeline are possible without changing the general idea.)

Just as the division of power between branches in the original Constitution and the limits on the power of the government as a whole in the Bill of Rights were based on what governments at the time (particularly the British Government, which featured neither the same kind of limits that superceded the regular legislative power nor a division of powers, having instead parliamentary supremacy) had demonstrated to be powers with which government as a whole, or single institutions within that government, could not be trusted, so we must continue to adapt our Constitutional model of government when experience shows that the cost of allowing prerogatives and powers to certain institutions of government outweighs any possible benefits that can be derived from that decision.

Here, the Senate has clearly demonstrated over quite a long time that, given unrestricted ability to set its own rules for considering actions, it is unable to effectively discharge its duties with regard to appointments when positive action is necessary to confirm an appointee.

(Arguably, the Senate has demonstrated that it is similarly disabled when it comes to legislative and treaty powers, as well, and it might well be worth considering reforming the Senate into an organ with exclusively negative powers outside of impeachment, but that's a rather larger reform that goes rather far beyond the issue at hand.)

Posted by: cmdicely on March 18, 2011 at 2:55 PM | PERMALINK

I find it amusing that a bipartisan group of 60 senators have sent a letter to Obama to lead them in the budget, I thought the rethugs were going to take the lead and cut everything, it seems they want Obama to hold their hand! It is not like he has anything else to do, and with the fixation that right has about the 9 minutes he took to fill out his predictions on basketball, the are saying he spends too much time involved in basketball. I wonder if they think he eats too much too - after all I guess he could not eat lunch in 9 mins.

Posted by: j on March 18, 2011 at 2:57 PM | PERMALINK

I think all this does is put down the fiction that judges are impartial.

The evidence might be the same but if you see it very differently if you're on the left or the right. Anyhow, I still think we need to junk the filibuster.

Posted by: Raptor on March 18, 2011 at 3:28 PM | PERMALINK

Why do only 44 of the 94 vacant positions have nominees?

Posted by: chi res on March 18, 2011 at 3:42 PM | PERMALINK

The goppers will continue their stall until the next election, when they hope to take over. If this happens, all subsequent judicial appointments will be hard-right wingers and instantly approved. The goppers want to control the Federal benches even more than they already do and federal judgeships are for life, so no Democrats need apply.

Posted by: oldswede on March 18, 2011 at 3:55 PM | PERMALINK

So why do the majority allow the filibuster? I thought we were going to get reform of the rules? What happened to that? Why is Harry Reid still "leading" the Dems? Sure the R's are the villains here, but after your car gets stolen 6 times, people are allowed to point out that you should start locking it.

MAKE THEM ACTUALLY DO THE FILIBUSTER. GO TO WAR with these people. Have a backbone!!!

Posted by: JohnN on March 18, 2011 at 4:38 PM | PERMALINK

All quite true. But please remember: only five years ago, it was the Democrats who were filibustering and obstructing the president's judicial nominations. Was anyone on this side of the fence complainingb then?

Posted by: bilben on March 18, 2011 at 7:02 PM | PERMALINK

bilben: you might try reading the article. There is no equivalency.

Posted by: JohnN on March 18, 2011 at 7:44 PM | PERMALINK

When criminals fail to get a speedy trial and they're out on bail where they can enjoy freedom and potentially victimize others because there aren't enough judges to process them all?

Three words for 2012: Soft On Crime.

Hire all the police and build all the jails you want, GOOPers, if they don't go to trial, you say it's okay that extra perps walk the streets.

Posted by: toowearyforoutrage on March 18, 2011 at 8:44 PM | PERMALINK



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