Obstruction in Senate taking its toll on courts

President Obama has vigorously consulted with Republican and Democratic senators from states where vacancies materialized before actual nominations. Obama has proffered uncontroversial nominees, of even temperament, who are smart, ethical, diligent and independent and diverse in terms of ethnicity, gender and ideology.

Senator Patrick Leahy (D-Vt.), the Judiciary Committee chairman, has rapidly conducted hearings and votes, condemning (sending) nominees to unending nights of the living dead on the floor where many languished over months. For example, in late September, the Senate confirmed two nominees, although it could easily have voted on another 19 nominees with committee approval. Indeed, the Senate recessed without considering any of those well qualified nominees, most of whom the committee reported absent substantive opposition, because the GOP refused to vote.

Republicans should stop their tricks and treat the process more cooperatively. The primary bottleneck has been the floor. Senator Mitch McConnell (R-Ky.), the minority leader, has played the role of Dracula, sucking the lifeblood out of qualified nominees’ candidacies by rarely agreeing to final votes. Even the dreaded Ninth Circuit nominee Goodwin Liu - whom McConnell and his colleagues outrageously characterized as the Second Coming of Earl Warren and refused any vote - has proved to be a remarkably mainstream California Supreme Court Justice. Most problematic has been Republican rejection of votes on noncontroversial strong nominees, inaction that violates Senate customs. When the chamber has ultimately voted, it has approved many nominees unanimously or by substantial majorities.

The 179 appellate judgeships, 15 of which are open, are crucial because the dozen circuits are courts of last resort in their regions for 99 percent of appeals. Obama has proposed seven exceptional nominees, and he should keep working with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who arranges floor votes, and their Republican counterparts to facilitate smooth confirmation while nominating strong candidates for the eight openings that lack nominees. On June 13, the GOP leadership invoked the “Thurmond Rule,” which masqueraded as a binding mandate, saying it would oppose votes on all appellate nominees until the election. Because this notion does not apply to excellent, consensus nominees, like First, Tenth, and Federal Circuit nominees William Kayatta, Robert Bacharach and Richard Taranto, the Senate must vote on them soon.

The 679 district judgeships, 68 of which are open, are essential, as district judges conduct federal trials and ascertain the facts, while appeals courts uphold 80 percent of lower court decisions. Obama has nominated 27 excellent individuals and must quickly suggest candidates for the 41 vacancies without nominees. For its part, the Senate must swiftly confirm nominees.

The vacancies in 83 judgeships resulting from GOP obstruction have, like Dr. Frankenstein, created monstrous dockets that jeopardize expeditious, inexpensive and fair case resolution. Thus, President Obama must promptly nominate, and senators rapidly confirm, numerous superb judges, so the courts can deliver justice. Boo!

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

More in Judicial

The Supreme Court and collective action

Read more »