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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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