Taking Judicial Vacancies Seriously

During the first two years of President Obama’s term, an attitude has developed that the president’s nominees are routinely stalled or filibustered in the Senate, and that there’s nothing that can be done about it. To be sure, the Republican minority in the Senate has launched an unprecedented number of filibusters, and has run out the clock on dozens of nominees. But that’s only part of the story.

In today’s New York Times, Jonathan Bernstein looks at whether there’s more that the Obama Administration could be doing.

For one thing, the president has named only nine judges for the 17 appeals court vacancies and only 41 judges for the 85 open district court seats. That’s significantly fewer nominations than Presidents George W. Bush or Bill Clinton had sent to Congress by this time in their first terms.

Moreover, unlike President Bush, President Obama has not used his bully pulpit to push for Senate confirmation of his nominations. Fairly or not, President Bush regularly lambasted Democrats for blocking an “up or down” vote on his nominees. Yet for all the recent chatter about a Republican-fueled judicial crisis, the president rarely speaks about the issue in public, and he didn’t mention it in his recent State of the Union address.

Of course, even if President Obama follows this course, there's no guarantee that more judgeships will be filled. Bernstein goes on to highlight ways the Senate’s Democratic majority could smooth the confirmation process and overcome Republican obstruction, and reminds us that Republicans in the Senate were nearly indiscriminate in their efforts to block nominees.

Republicans in the Senate should uphold their new commitment to comity by allowing regular votes on nominees. During the last two years, Republicans have regularly used procedural tactics, secret holds, and threats of filibusters to stall, block, or derail dozens of qualified nominees.

Bernstein’s op-ed is a reminder that everyone – Senate Democrats, Republicans, the White House, judges, lawyers, reporters, and the general public – needs to take a more active interest in the growing crisis in the judiciary.

You can read the entire piece here.