● The more seats remain vacant, the greater the incentive to politicize the process. In the George W. Bush administration, the judicial-vacancy rate dropped to 4 percent. * Now it's up to 10 percent again. The stakes become higher and higher as the opportunity to significantly reshape the federal bench becomes more real. The incentive for a Senate minority to obstruct nominees also grows with the vacancy rate. The party not in control of the White House invariably believes it will recapture the presidency in the next election and thus has the opportunity to appoint judges more to its liking. Accordingly, each nominee obstructed now is another vacancy reserved for the out-of-power party's president. These dynamics are evident with the midterm elections approaching: The process has now essentially shut down. That's why only one appellate nominee even received floor consideration between April 23 and Sept. 12 of this year.
● The rampant politicization of the selection process is undermining public respect for the co-equal branches of government. President George W. Bush's use of the White House for a ceremony introducing his first 11 appellate nominees and his promotion of his judicial nominees exacerbated the sense that federal judgeships were a political prize for the winning party. Obama has attempted to depoliticize the confirmation process by naming judges generally regarded as centrist and moderate—much to the dismay of many liberals. But it has changed nothing. When the Senate confirmation process degenerates into cartoonish charges of judicial unfitness, name-calling, recriminations, and endless paybacks, the consequences go far beyond the legitimacy of Congress, to the legitimacy of the courts themselves. As courts are batted around for partisan political purposes, nominees and judges appear to be purely political actors—no different than members of Congress or the president. That doesn't just hurt judges. It hurts those of us who rely on judges to deliver just outcomes.
Americans watching the confirmation wars won't ultimately recall which president named which judge or what the final vote was. But they may begin to accept as normal an inaccurate and deeply politicized vision of judges as a bunch of alternating partisan hacks and a federal bench that is limping, rather than racing, to do justice.
Correction, Sept. 28, 2010: This article originally stated that the vacancy rate was 4 percent under the Clinton administration; the rate was 10 percent. It was under George W. Bush that the vacancy rate dropped to 4 percent. (Return to the corrected sentence.)