Bipartisanship and filling the federal bench

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Until yesterday, the Do Nothing Senate plumbed new depths on judicial appointments by not agreeing to consider one of the 17 outstanding nominees. On Thursday, Senator Harry Reid (D-Nev.), the Majority Leader, sought consent to consider the “17 district judges on the calendar, 14 reported by voice vote [, twelve of whom] will fill judicial emergencies.” Senator Mitch McConnell (R-Ky.), the Minority Leader, responded that he was “happy to work with the Majority Leader [on] consent agreements to process the next two district court nominations that are in the queue [but objected because] we cannot allow the majority to jam us here at the end of this session.”

The federal bench presently has 78 vacancies among the 858 appellate and district court positions. The openings initially reached 90 more than three years ago and have been at or near 90 ever since then. The 78 unfilled seats, which are practically ten percent, undercut prompt, inexpensive and fair case resolution. Accordingly, senators, especially on the Republican side of the aisle, must seriously consider affording the 17 nominees votes ahead of members’ recess to participate in election campaigns.

Ever since the bruising 1987 battle over President Ronald Regan’s nomination of Circuit Judge Robert Bork, to the Supreme Court and notably in President Obama’s four years, Republican and Democratic accusations, countercharges and partisanship have plagued selection. Democrats presently control the Executive and the upper chamber, but they should continue cooperating with Republicans and end or limit these destructive dynamics because appointments will stop until November after the Senate goes out.

For their part, Republicans must carefully evaluate the prospect of leaving town without considering 15 of the 17 nominees pending on the floor. The 17 are consensus nominees, who possess balanced temperament and are smart, ethical, hard working, independent and diverse vis-á-vis ethnicity, gender and ideology. Republican senators must keep in mind that the chamber went on its summer recess without considering 22 strong nominees whom the committee had reported because McConnell would not agree to votes on the prospects. GOP members ought to remember that failure to act on consensus, talented nominees violates time-honored Senate traditions. Moreover, of the 17 nominees, 14 lacked any opposition on the merits and enjoy strong backing of home state senators, while a dozen would fill emergencies. Republicans should concomitantly keep in mind that the Senate confirmed ten district nominees of President George W. Bush in late September 2008. The chamber could felicitously approve the 17 Obama nominees, just as it did the Bush judges with voice votes, which require only a few minutes. Finally, the GOP should remember that lengthy vacancies detrimentally affect litigants, attorneys and judges by slowing case resolution and show disrespect for the co-equal Third Branch.

The 78 judicial openings prevent the delivery of justice. Thus, Republican members should permit votes on the 17 nominees prior to departing.

Tobias is the Williams Chair in Law at the University of Richmond.