Obama's nominees to the bench are waiting too long.

The law, lawyers, and the court.
Oct. 26 2009 9:34 AM

The Bench in Purgatory

The new Republican obstructionism on Obama's judicial nominees.

Senate Minority Leader Mitch McConnell. Click image to expand.
Senate Minority Leader Mitch McConnell 

It's still early in President Obama's first term, but not too soon to conclude that the president's effort to "put the confirmation wars [for judges] behind us" is not going well. Only three of his 22 lower court nominees have been confirmed so far. The latest one, Roberto Lange for a federal district court in South Dakota, was cleared last week after waiting for three and a half months (including three weeks on the floor). The slow pace of the president's nominations is part of the problem. But the larger issue is a new form of obstructionism in the Senate.

It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees. If this continues, it will worsen an already serious problem of vacancies on the federal courts. And it will discourage from ever entering the confirmation process precisely the type of nominees both parties should want.

Over the past several decades, senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going president's term in office. To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. While there has never been an agreed-upon definition of what that means—it's an eye-of-the-beholder type of thing—there has consistently been a large category of nominees that are not considered controversial. They have typically made it easily through the Senate confirmation process, no matter how rough the ride is for their controversial counterparts.

Consider, for example, the judicial nominations process during President George W. Bush's last two years in office, 2007 and 2008. Bush was deeply unpopular at the time, and he faced a Senate firmly under Democratic control. Still, a large number of Bush nominees sailed through. The Senate voted on more than one-third of Bush's confirmed nominees (26 of 68) less than three months after the president nominated them. This was possible because Majority Leader Harry Reid, D-Nev., moved uncontroversial Bush nominees directly to votes on the Senate floor after they cleared the Senate judiciary committee. Twenty-three of the Bush nominees were confirmed on the Senate floor within a week of passing out of the judiciary committee. The story was similar in the first two years of Bush's presidency: A Democratic majority in Congress confirmed 100 of Bush's nominees in 17 months, even after delays due to a change in party control of the Sen. after Senator James Jeffords left the Republican Party in May 2001.

One might expect that Obama would have a much easier time getting his nominees confirmed than Bush. After all, Obama remains popular, and his party controls a filibuster-proof majority of 60 seats in the Senate. And Obama has been exceedingly careful in his judicial picks. His team is searching high and low for nominees who fit the bill as consensus candidates: so much so that his pace for judicial nominations, of 22 so far, is far behind Bush's.

Despite all this, Senate Republicans still won't give Obama's judges a vote. The three Obama judges confirmed to the lower courts—Gerard Lynch * from New York and Jeffrey Viken from South Dakota in addition to Lange—each spent weeks pending on the Senate floor and endured a confirmation process that lasted more than three months. Two additional nominees, Andre Davis of Maryland and David Hamilton of Indiana, cleared the Senate judiciary committee way back on June 4—144 days ago. Yet their floor votes are still pending.

Davis and Hamilton have spent longer in this particular form of limbo than any Bush nominee confirmed from 2007-08. Yet Davis cleared the judiciary committee by a bipartisan vote of 16-3 and can't remotely be considered controversial. Hamilton has the strong support of his home state Republican senator, Richard Lugar. Beverly Martin, an appeals court nominee supported by Georgia's two conservative Republican senators, was unanimously reported out of the Senate judiciary committee by a voice vote more than 46 days ago. She, too, has not received a Senate floor vote. Five other Obama nominees, all well-qualified and without any serious opposition, similarly await floor action.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama's agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

This is unprecedented and dangerous. There are already 95 vacancies on the federal bench at a time when there is bipartisan agreement that we need more judgeships. The last thing we need is for existing seats in overworked courts to go unfilled.

Even more important, Republican obstruction of uncontroversial nominees undermines the one part of the judicial confirmation process that was still working, until now. Well-qualified nominees who enjoy bipartisan support should be able to count on a fair and relatively smooth Senate confirmation process. This is critical because while they're waiting, the careers of these nominees go on hold. Given the demands of the bench, and the gap between judicial salaries and what these candidates could earn in private practice, the nation is already lucky that top candidates are willing to serve. If we throw in an unpredictable and lengthy confirmation process, the quality of the federal bench—and the dispensation of justice—will unquestionably suffer.

The molasses treatment Republicans are giving Obama's consensus judicial nominees should convince President Obama that accommodation is fruitless. Republicans are spoiling for a fight over judges, bucked up by an energized base and polling that indicates that such a fight will help them. Obama cannot avoid a confrontation. And those of us who care deeply about a well-functioning judicial branch should work now to stop this new form of obstructionism.

Correction, Oct. 26, 2009: Gerard Lynch's name was originally misspelled in this article. (Return to the corrected sentence.)

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