On Judicial Nominees, a Moment of Truth for the Senate

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Tomorrow, we are going to find out whether Congress is capable even of ministerial functions like hiring enough judges for America's courtrooms.

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I know of no man, even among those who devote all of their time to watching public affairs, who can even pretend to keep track, at the same time, of his city government, his state government, Congress, the departments, the industrial situation and the rest of the world. What men who make a study of politics as a vocation cannot do, the man who has an hour a day for newspapers and talk cannot possibly hope to do. He must seize catchwords and headlines or nothing.

--Walter Lippmann, Liberty and the News, 1920

There are many things that Congress does, many important choices it makes, which are complicated. Take legislation, for example. As we are reminded daily by the roiling debate over the Affordable Care Act, both before and after its passage nearly two years ago, there are typically a great many moving parts that go into a federal statute. To a mathematical certainly, I would bet, the complexity of the policy choice -- who benefits, who bears the burden, who decides -- begets the variety (and the validity) of the spin. That's why Republicans had so little smack to offer President Obama when U.S. troops killed Osama bin Laden last May.

Complex policy issues generate complex spin. Simple issues of governance generate plain old nonsense

On the other hand, the more complicated the matter, the more prone it is to demagoguery, the more easily it can be manipulated. The loaded word "Obamacare," for example, is a perfect illustration of what Lippmann meant about "catchwords." Never mind what the law's details involve -- or what it actually does -- to the millions of people opposed to the Affordable Care Act the word "Obamacare" connotes some degree of malevolent control on the part of the president, his White House, and his other federal offices, over individual health care choices.

You can spin a law. You can spin a policy. You can spin the influence of lobbyists and political money. You can spin judicial decisions and Congressional hearings and you can even spin what's broadcast on C-Span every day if you really wanted to. What cannot be spun, however, what is so simple and basic a matter of governance that it beggars spin, is the choice United States Senators must make when they are voting on judicial nominees who already have been broadly endorsed by the Senate Judiciary Committee.

Which brings us to tomorrow and a potential showdown in the Senate which ought to be required following for every high school and college political science class. There is a lot at stake. First, we are going to find out whether the Senate in this election year is capable even of ministerial functions like making sure there are enough judges to respond to the crush of federal litigation all over the country. Second, we are going to be reminded now of how vital the race for control of the Senate is going to be leading up to November's vote.

Like all pressure points, this one is borne of frustration. Senate Majority Leader Harry Reid (D-Nev.) announced Monday that he was fed up with Republican intransigence over the president's pending judicial nominees and that he would move, at the same time, to invoke cloture on 17 such nominees. The move could tie the chamber up for weeks of debate -- and there is no other way to perceive it but as an exercise of raw power by the majority to force the minority into making substantive choices about the nominees.

Is that a good thing or a bad thing? Let's take a closer look at the Gang of 17. They are all federal trial court nominees. They come from 15 different states and the District of Columbia. Eight were unanimously voted out of the Judiciary Committee by a voice vote -- there was no Republican opposition to their nomination. Six others were opposed by only one Republican lawmaker (Sen. Mike Lee (R-Utah) has adopted a policy of opposing any Obama nominees because of the president's controversial recess appointments a few months ago).

Many of these uncontroversial nominees -- I count seven of the 17 but the number may be higher -- would work in districts that have been formally declared "judicial emergencies' because the existing judges there cannot handle the workload. In other words, like fresh troops to a battle, the nominees are desperately needed within the federal judicial system to plug holes that exist on court dockets. Who suffers from the lack of federal judges? You and me. And any other litigant who has to wait years to have her rights and remedies adjudged.

It's simple. It's not complex. Say you are having a bourbon tonight with your neighbor and you tell him:

The Senate has 17 smart, willing people ready to come to work for the federal government. They have been vetted by their profession. They have been vetted by the White House. And they have been vetted by the Congress in the form of the Judiciary Committee. There is a great need for these people to be approved so that they can get to work. And there's already been evidence that there is little to no substantive opposition to their nominations. Yet they cannot get about their vital jobs because one party in Congress wants to slow down the pace of the president's judicial nominations.

How would your neighbor respond? Would he say that the nation is better off letting those 17 would-be judges cool their heels for another few months while litigants all over America are forced to wait longer for their day in court? Would he say that "judicial emergencies" are just a "manufactured" controversy and that all those litigants deserve to wait for justice because the president made a few recess appointments a while ago? Or would he just shake his head and say: "No wonder congressional popularity is at an all-time low."

Complex policy issues generate complex spin. Simple issues of governance -- like allowing strong judicial nominees to become public servants -- generate plain old nonsense. For example, Sen. Lee, who has made a career out of political stunts designed to hinder the White House's ability to get judicial nominees through Congress, now says that Sen. Reid's cloture move is a "political stunt." Sen. Lee wants to teach the president a lesson -- and of course it's you and me and your neighbor the plaintiff who will have to pay the price.

When it comes to judicial nominees, all this talk of Senate tradition and prerogative is bunk (whether it comes from Republicans or Democrats). The reason the American people have turned on federal legislators is because those legislators have consistently chosen form over substance, procedure over practicality. Is there a simpler example of this damaging trend than the story of these judicial nominees? There is nothing in the Constitution that requires or allows the Senate to unilaterally downsize the judicial branch in this fashion.

The other silly argument Republicans now are employing to justify their failure to make life easier for litigants blames Obama for not nominating enough judges. This is a version of the same argument your child makes to you when he has a full plate of food in front of him while he's asking for seconds. How about the GOP get these 17 easy nominees out of the way first, get them on the road toward their districts so they can work for citizens who have federal grievances, before they complain about the lack of new appointees in the pipeline?

If GOP senators had a beef with these nominees on the merits they should have raised those concerns during committee hearings. And if GOP lawmakers have a beef now with the nominees they should express those concerns on the floor of the Senate. The fact that the former did not happen and that the latter isn't even being discussed tells you what you need to know about the depth of Republican concern over the quality of the candidates. It's not about the nominees -- or the litigants who need them. How do you like your Senate now?  

Little of this bodes well for the immediate future. If President Obama wins reelection and the Senate narrowly remains in Democratic hands we are likely to see this destructive game played out for four more years. And, if the president wins reelection and the Republicans take over the Senate, we'll see fewer and fewer of his judicial nominees making it out of the Judiciary Committee in the first place since that Committee will then be led by a group of Republicans who are among the fiercest opponents of the president's judicial nominees.

The Middle East is complicated. The economy is complicated. Gas prices are complicated. Whether the Affordable Care Act is constitutional is complicated. What is not at all complicated is the question of whether honest, decent men and women who want to serve America in the best way they know -- as underpaid, overworked, eternally harassed federal trial judges -- should be given the earliest opportunity to do so. There is no way for Senate Republicans to spin this: it's just bad governance in its most needlessly self-destructive form.


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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