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August 19, 2011 12:45 PM Crisis on the courts

By Steve Benen

As the Senate wrapped up business before its August break, magnanimous Republicans graciously allowed the chamber to briefly function, approving four of President Obama’s judicial nominees. Senate Democrats hoped to move on 20 other judges — all of whom enjoyed bipartisan support in the Judiciary Committee — but the GOP Senate minority refused. All of those 20 were qualified jurists, but Republicans didn’t care.

From time to time, it’s worth remembering that among DC’s many political crises, the vacancies on the federal judiciary rank pretty high. The Washington Post editorial board recently got this largely right.

There are 88 federal court vacancies, and five judges have announced their plans to retire. Mr. Obama was woefully slow in sending up nominations early in his term, nominating only 34 in 2009. But he has picked up the pace, with 71 nominations in 2010 and 50 so far this year. Yet the Senate has confirmed just 35 Obama judicial nominees this year — with only three for the courts of appeals. The responsibility for lingering vacancies now lies primarily with Capitol Hill. […]

The gamesmanship is not only frustrating but also destructive. The lives of nominees and their families are put on hold. Cases grind to a halt and expenses for litigants soar as even relatively simple matters take an inordinate amount of time to resolve. The legitimacy of the courts is undermined. Stephen Zack, president of the American Bar Association, put it well in a recent letter urging Senate leaders to move expeditiously on filling empty judicial slots that “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

The White House also appears to be taking this at least a little more seriously, today unveiling an interesting “infographic” that highlights the diversity of Obama’s nominees, and reminds us about the broken confirmation process. This part of the image, comparing the obstructionism against other modern presidents, was of particular interest:

It’s a little tough to see (click on the image for a larger view), but note that the average wait time for a Bush circuit court nominee was 29 days. For Obama, it’s 151 days.

For many, especially in the media, there’s a sense that the obstructionism we’re seeing is just routine political wrangling — Dems do this to GOP presidents, Republicans do this to Democratic presidents. Nothing to see here.

This perception is demonstrably wrong. Obama’s judicial nominees are being blocked at a level unseen in American history. This isn’t just denying an elected president an opportunity to leave his mark on the judiciary; these delays are literally undermining the nation’s system of justice.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • Pokeyone on August 19, 2011 1:00 PM:

    As usual, virtually no matter the issue, IOKIYAR, ISIYAD. (It sucks if you're a Democrat.)

  • stormskies on August 19, 2011 1:01 PM:

    And I am sure we will see this story front and center on all the Sunday propaganda shows, and being presented to American on all the nightly propaganda corporate news ... if not, why not ? Sadly, we all know the answers

  • Frank Wilhoit on August 19, 2011 1:04 PM:

    "... literally undermining the nationís system of justice."

    From the Republican standpoint, this is a feature, not a bug.

  • KC on August 19, 2011 1:04 PM:

    Good thing the President had a plan to deal with this stuff from the get go. Now, all these vacancies can be filled by the forthcoming Republican administration. Wouldn't want democratic appointments, after all.

  • Josef K on August 19, 2011 1:05 PM:

    You know, to hell with "recess appointments". I'd suggest the President take the Senate's lack of action as their fulfilling their function of "advise and consent", go ahead and tell his nominees to report for work on Monday.

    There's nothing in the Constitution that says nominees have to have an official vote by the Senate, just that the upper chamber has to "advise and consent" on these appointments. So, if a nominee's appointment isn't worth the Senate's valuable time that they decline to bring it up for a vote, that can be interpreted as "consent" on their part.

    I can anticipate the immediate objection: what about all these Secret Holds and/or individual Senator's objections that've gummed up the works? What about them? That's the opinion of a single officeholder, not the entire chamber, which again has consented on a given nominee by their silence.

    Is this all legally dubious? Sure, but given the magnitude of the crisis, I can't see a downside to taking action, any action to address it.

  • JW on August 19, 2011 1:16 PM:

    "The legitimacy of the courts is undermined".

    No kidding.

    So what does the administration do? It release an infographic.

    Let us praise such leadership. Let us praise the president's faithful adherence to his sworn oath to "preserve, protect, and defend". Let us applaud his inflicting punishment on a perverted political opposition. My God, the GOP leadership must be shaken to its core.

    And then imagine if Harry Truman had been presented with a threat to the legitimacy of the judicial system of the United States.

    Obama couldn't fight his way out of a soap bubble.

  • c u n d gulag on August 19, 2011 1:46 PM:

    Those seats will remain vacant until the next Republican President will be able to fill it with conservative, religious, knuckle-dragging morons.

  • square1 on August 19, 2011 2:01 PM:

    What KC and JW said.

    I'm sick of Democrats whining about Republicans acting like Republicans. That's why we voted Democrats into power in 2006 and 2008. Their job was to deal with this crap.

    Listening to Democrats in D.C. complain about GOP obstructionism is like listening to a firefighter complain that he can't do his job because "it sure it hot and smokey in there". Yes. That's why they call it a fire.

    Republicans are blocking the appointments by using the existing rules of the Senate. They are playing by the rules. Democrats have 3 choices:

    1. Nominate judges that Republicans will vote for.

    2. Change the rules of the Senate.

    3. Stop whining and STFU.

    Personally, I would have gone for option 2 in the beginning of 2009 when I knew that the GOP would try to do. At the very least, I would have changed the rules when the most recent Congress started in 2011. President Obama and Sen. Reid chose to keep the existing rules in place which give the minority party, and even individual senators, effective veto power over Senate business. That's what they wanted. That's what they got.

  • zandru on August 19, 2011 2:43 PM:

    "erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions."

    Now, why did the Wapo have to go and write that? It's like an "attaboy!" to the DC Republicans.

    Remember, your democratically-elected government is the enemy, an alien force that's remorselessly out to get you. And it's completely incompetent. Plank 0 of the GOP platform.

  • mike on August 19, 2011 5:17 PM:

    "The legitimacy of the courts is undermined."

    Um, that's sort of the point.

  • sceptic on August 19, 2011 5:37 PM:

    So here's your ethical conundrum for the day. Let's say the Repubs take back the White House. Do we play turn-about and block their nominees, as they did to us, even though it will further undermine the Judicial system? But if we let them get away with it without retaliation, won't that just encourage them to do again in the future?

    Suppose President Perry presents a package to Congress that is essentially a stimulus bill, though by another name, and we feel confident it will improve the economy, although they would have fought it tooth and nail had it been proposed by a Dem Pres. Do we pass it for the good of the country, knowing that it will strengthen a Repub party will never play by the same rules?

  • Crissa on August 19, 2011 7:21 PM:

    Obama was woefully slow?

    Or Congress was woefully slow?

    Is there some confusion, Washington Post?

  • Crissa on August 19, 2011 7:28 PM:

    Can anyone here who's complaining:

    Tell what Obama should do? What control does he have over this? What media will tell on the Republicans placing holds?

    Tell what candidates Republicans won't vote for? Nominees are being delayed here, not voted down.

    Tell what Democrats are supposed to do about this? There isn't a majority in the Senate who approve of changing these rules. You may be annoyed, but there are at least 51 Senators (41 aren't Democrats) who won't vote to change these rules. How is the minority in the chamber supposed to change this?

    Don't blame Obama for things he can't do.

  • JW on August 19, 2011 8:21 PM:

    Crissa: You gutless apologists for the featherweight from Illinois are beyond the pale.

    Obama has been celebrated for his power of elocution since his 2004 keynote address. Yet now, with the integrity of the U.S. Judicial system at stake, you would have people suddenly believe that the man has lost his voice? That the presidential pulpit is no longer bully? That Americans would not respond if he were to uphold his oath of office, by alerting them to a clear and present danger to our Republic because "what media will tell on the republicans placing holds?".

    You are an enabler of the worst sort, a breed of cat that sucked the life force out of the democratic party. Why not just get it over with, and begin voting republican?

  • JW on August 19, 2011 8:23 PM:

    Crissa: You gutless apologists for the featherweight from Illinois are beyond the pale.

    Obama has been celebrated for his power of elocution since his 2004 keynote address. Yet now, with the integrity of the U.S. Judicial system at stake, you would have people suddenly believe that the man has lost his voice? That the presidential pulpit is no longer bully? That Americans would not respond if he were to uphold his oath of office, by alerting them to a clear and present danger to our Republic because "what media will tell on the republicans placing holds?".

    You are an enabler of the worst sort, a breed of cat that sucked the life force out of the democratic party. Why not just get it over with, and begin voting republican?

  • Doug on August 19, 2011 8:55 PM:

    JW: you bubbleheaded bullsh*tters from FDL and environs should just go away and let the adults work on solving the problems you so obviously are incapable of even facing. THAT subtle enough for you?

    "That the presidential pulpit is no longer bully?"
    So, just what are YOUR plans for the use of this "bully pulpit"? To sway the hearts and minds of the Republican/Teabaggers in DC? Do you expect to see Cantor and Co. standing sheepishly in front of a battery of microphones where they admit that, gee, noone had ever explained it to them before and they're really, really sorry?
    No? Then perhaps you envision mobs of angry voters, incited by the President's flashing rheotic, pitchforks at the ready while they drag screaming Teabagger Senators and Representatives to the waiting barrels of hot tar?
    Or maybe you're just stupid?
    I'm going with number three, Monty...

    To paraphrase:
    JW, you are an enabler of fantasiasts of the worst sort, a breed of sheep so determined to maintain the flock's purity that it will suck the spirit out of the Democratic party, replacing it with a left-wing version of Teabaggerish "pledges". All in the name of "progressivism", of course. Why don't YOU go vote your local equivalent of a "Know-nothing" candidate?
    Heaven knows, you've more than shown you're lacking in ANY knowledge of politics; ie, getting policies enacted, while also demonstrating a near complete lack of understanding of the current media, human psychology and, finally, what President Obama HAS been doing in his weekly speeches for the past two years. Hint: "bully pulpit".

    note: I purposely DIDN'T use your "cat" reference because I have too much respect for felines...

  • JW on August 19, 2011 11:33 PM:

    Doug, you are a boneless wonder content to drift on an ever rightward rip-tide as the ship beneath you sinks.

    Political realities? I've lived over half a century of this nation's history. Your "current media", "human psychology", "weekly speeches" apologia for the caliber of the president's judgement is the stuff that has eviscerated the democratic party since (at least) 1980.

    There's a good reason why Obama's beau ideal of a president is Ronald Reagan.

    The man does not fight for today's democratic rank and file for a simple reason. Simply put, he is at heart what used to be called a "moderate" republican (circa 1978).

    Good night, Gracie.

  • Doug on August 20, 2011 7:40 PM:

    JW, sorry about the late response.
    By the way, don't try and pull that "I've lived over half a century of this nation's history" crap on me, either! I'VE lived over 60 years of this nation's history and can top your claims any day - I've LEARNED from what I, and this nation, have experienced.
    Nor have I written any "apologia" for the actions of President Obama and the Democratic Party, they need none. Nor have I noticed any "evisceration" of the the Democratic Party. I HAVE noticed a continuing desire for a leftwing Dictator (what else to call someone who "demands" or "orders", rather than negotiates?) on the part of many who call themselves "progressive". In case you hadn't noticed, what makes "progressive" achievements last is the support given to those achievments by the majority of this country's citizens. They DO NOT give that support easily, which is what makes your demands for pushing UNSUPPORTED progressive policies so dangerous. It's one thing to come back from losing a battle, it's quite another to "win" the war only to lose the peace.
    I finally do understand how you could, even after "fifty years of living this nation's history", make the errors you do. After all, you DID write the following: "There's a good reason why Obama's beau ideal of a president is Ronald Reagan...he(Obama) is at heart what used to be called a 'moderate' Republican (circa 1978)" and, apparently, you believe it.
    "Goodnight, and good luck"

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