Why the Senate Needs to Approve More Judges Before It Adjourns

By CARL TOBIAS

Wednesday, Sept. 17, 2008

Now that the 110th Senate has returned from its August recess and is feverishly racing toward adjournment so that many senators can return home to campaign for reelection, Senators must focus upon the controversial issue of federal judicial selection.

Thus far, charges and recriminations, partisan divisiveness and paybacks have punctuated the process. Democrats have accused President Bush of nominating conservative ideologues, and Republicans have asserted that the Democratic Senate majority is processing nominees too slowly.

However, the 110th Senate can still confirm numerous judges in the limited time that remains if Democrats and Republicans work cooperatively to approve judges - as they have shown the capacity to do in the recent past.

Despite Partisanship, Judicial Selection Has Gone Relatively Smoothly in Recent Years

Allegations and countercharges, as well as partisan gamesmanship, have attended judicial appointments for two decades partly because one party has occupied the White House, which nominates candidates, while the other party has possessed a majority in the Senate, which confirms nominees. Democrats have accused President Bush of submitting ideologically conservative nominees, who are not consensus picks, and of failing to consult senators from the states where vacancies arise before selecting nominees. In turn, Republicans have asserted that Democrats have not expeditiously investigated Bush nominees or promptly scheduled Judiciary Committee hearings and votes or Senate floor debates and votes.

Although partisanship has plagued judicial selection for most of the Bush Administration's two terms, the selection process has actually operated rather smoothly in the 110th Congress. As a result, relatively few judgeships remain vacant. Ten out of 179 federal appellate positions are open, and 34 out of 678 federal district seats are vacant.

This represents a change from the past: During the Democratic presidency of Bill Clinton, Senator Orrin Hatch (R - Utah), the Judiciary Committee chair, was fond of saying that he considered 60 openings "full employment for the judiciary." Moreover, at the conclusion of the Clinton administration, there were approximately 85 vacancies on the courts, nearly 30 of which were on the appellate courts. There were concomitantly almost 100 empty judgeships at the end of the George H. W. Bush administration. Appeals court openings are considered more important because the regional circuits are essentially the courts of last resort for 99 percent of cases as the Supreme Court hears so few appeals - meaning that the circuits have the last word on highly controversial cases raising issues relating to abortion, religion and terrorism.

Despite Belated White House Nominations, There Is Still Time to Confirm Nominees, Especially Consensus Choices

Today, the Bush White House deserves considerable responsibility for the judgeships that are presently empty. The Judiciary Committee has rather felicitously processed nominees throughout much of the 110th Congress. However, President Bush has been slow in making his nominations. Fourteen of Bush's 35 current nominees have been pending only since July 10 and nine of those only since July 22. When the White House submits large groups of nominees immediately before a Senate recess, that complicates smooth processing. Moreover, in this presidential election year, it was clear to all who participate in selection that, as is traditional, the confirmation process would slow and then virtually stop after the conventions.

Despite these problems, Senators still might be able to confirm a number of nominees in the few weeks that are left. Democrats and Republicans should eschew partisanship and work together, and Senators ought to confirm promptly consensus nominees. Good examples come from Pennsylvania where Pennsylvania Senators Arlen Specter (R) and Bob Casey (D) concurred -- as well as from Virginia, where Senators John Warner (R) and Jim Webb (D) concurred. Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, should expeditiously schedule hearings and votes, while Senator Harry Reid (D-Nev.), the Majority Leader, should promptly schedule floor debates and votes.

Typically, federal judicial selection slows during a presidential elections year, especially at the end of a two-term administration. Nonetheless, the 110th Senate can still approve numerous nominees before it adjourns, if Democrats and Republicans cooperate and expeditiously review consensus picks. The parties should now resolve to work together for the good of the courts and the nation.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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