By Richard W. Painter, former chief White House ethics lawyer and Michael J. Gerhardt, former special counsel to Sen. Patrick Leahy (D-Vt.)
Since Obama took office, the number of federal trial court vacancies has actually increased rather than decreased, the first time in recent history that’s occurred during a president’s term, according to a recent study by The Brookings Institution. The under-staffing of the federal courts creates many judicial emergencies, and the losers, in every instance, are the parties expecting their day in court but instead feeling the sting of the denial of justice.
Today, there are 83 vacancies on the federal bench – an intolerably high rate at any time. But this vacancy rate is particularly alarming, considering that by this time in President Bush’s first term, he had lowered the number of vacancies to 43.
Fortunately most senators have not adopted Lee’s threat wholesale, and have voted to confirm the few judicial nominees who, against all odds, secured a vote on the Senate floor. But it only takes one senator to hold up or needlessly delay the confirmation of a nominee. Just last month another lone actor, Sen. Rand Paul (R-Ky.), held hostage the nomination of Adalberto Jordan, an eminently qualified appeals court nominee, as political capital for an unrelated proposal to cut off aid to Egypt until American detainees are released. As Obama said recently in response to Lee’s initial threat, “One senator gumming up the whole works for the entire country is certainly not what our Founding Fathers envisioned.”
We need an alternative way of staffing the essential work of our government’s third branch, and the Obama proposal endorsed by Reid is the only sensible solution we’ve seen coming from a politician. Moreover, it’s a solution that recent history shows should have bipartisan support. In 2002, President George W. Bush also proposed a timetable for up-or-down votes on judicial nominees, suggesting that the Judiciary Committee vet nominees within 90 days of their nomination, and that the Senate hold a vote on those nominees within 180 days.
Bush’s proposal was never adopted. Instead, a bipartisan group of 14 senators, known as the “Gang of 14,” made an agreement not to filibuster judicial nominations except in “extraordinary circumstances.” The agreement was intended to facilitate judicial appointments and eliminate objections based on ideological differences, and it worked for a time even though the compromise was not ideal. But as we document in a recent American Constitution Society issue brief, the agreement has degenerated since Obama took office, with senators persistently obstructing judicial nominees on the basis of speculation and distortion.
The decline of this agreement has meant not only that senators have made scapegoats out of some of the president’s most outstanding appeals court nominees, like now-California Supreme Court Justice Goodwin Liu and former New York Solicitor General Caitlin Halligan, both of whom were denied floor votes on their nominations. It also means that trial court nominees with absolutely no known opposition sit for months or even years on the Senate calendar before their ultimate confirmation, leaving seats considered judicial emergencies unnecessarily empty.
Empty benches are not in anybody’s interest. And it should be in the interest of all politicians to find a better way to fill those seats. Both the presidential candidates and sitting senators should either put forth their alternative proposals now, or endorse the Obama proposal.
In our ACS issue brief, we offered our own proposal for reform, which would allow a substantial minority of senators to delay but not filibuster judicial nominees if they are able to pass a resolution stating their specific objections to the nominee. We still support this proposal as a viable alternative to the president’s, but the paramount concern is that politicians move forward with some effective reform.
Now is the time for bipartisan action, while Obama still has some time to submit nominations that will be given due consideration under the new rule, and Republicans have an interest in coming to an agreement that will benefit their nominee should he win the presidential election.
The moment for bipartisan support on what should be a bipartisan issue is fleeting, and Americans can’t afford to wait any longer for justice in our courts.
Painter is a law professor at the University of Minnesota and former chief White House ethics lawyer under President George W. Bush. Gerhardt is a law professor at University of North Carolina and served as Special Counsel to Chairman Patrick Leahy and the Senate Judiciary Committee for the nominations of Justices Sonia Sotomayor and Elena Kagan.