Why the New White House Push for Judicial Nominees Won't Work

The confirmation system is so broken that it takes a year for qualified nominees to be approved. That's leaving dozens of courts woefully understaffed.
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The Senate Judiciary Committee discusses whether to send a nomination to the Senate for confirmation. (Jonathan Ernst/Reuters)

The New York Times tells us this morning that the Obama Administration this week plans to redouble its efforts to fill three longstanding judicial vacancies on the D.C. Circuit Court of Appeals, the most important appellate court in the country besides the Supreme Court. Just days after this White House finally got its first D.C. Circuit nominee confirmed to the court, Michael D. Shear reports that President Barack Obama will nominate three more candidates, "effectively ... daring Republicans to find specific ground to filibuster all the nominees."

Good for the White House. But the whole point of these judicial filibusters is that there is rarely any "specific ground" to block a substantive vote -- at least no "ground" based upon the merits of a particular nominee's qualifications for the bench. The vast majority of the president's judicial nominees have been endorsed by the Senate Judiciary Committee with bipartisan support -- meaning that the senators with the most access to information about the candidates, and the most expertise in evaluating their credentials, have endorsed the nominees.

None of this matters much, however, when these nominations move to the Senate floor. Take Robert Bachrach (10th Circuit), William Kayatta (1st Circuit) and Richard Taranto (Federal Circuit), for example. Their nominations sailed through the Judiciary Committee. But each candidate had to wait hundreds of days before Republican leaders in the Senate permitted a vote. And when these qualified candidates finally were given a vote, the count came out overwhelmingly in favor of their nominations.

It took Kayatta 13 months to go through this process before he was confirmed 88-12. It took Bachrach 13 months as well before he was confirmed 93-0. It took Taranto nearly a full year before he was confirmed 91-0.* These votes tell us that there was no "specific ground" to oppose the nominations of these candidates, but that they were opposed solely for the purpose of delaying the administration's nominations process. Each day we allow this unacceptable situation to fester is a day we move closer to the sort of third-world justice we have long mocked.

The D.C. Circuit has long needed new judges, but it is hardly alone. There are currently 79 vacancies on the nation's benches and 32 judicial jurisdictions so grossly understaffed that they constitute an official "judicial emergency." In one judicial district after another, aging federal jurists, heroes really, are trying in "senior status" to fill the void left by these vacancies.

Who loses when this occurs? You do. By keeping our federal benches empty longer than they have to be, these partisan filibusters delay and deny justice to litigants all over the country.

That's just one reason why the modern filibuster of the judicial nominee is so particularly invidious. Everyone in the Senate knows that there is no profound ideological disagreement about most of these candidates. Everyone in the Senate knows that these Judiciary Committee-endorsed men and women are qualified nominees. And everyone beyond Capitol Hill knows that there is no meaningful objection to these nominees. But still these nominees linger, willing and capable public servants, desperately needed to fill the nation's empty benches, yet unable to do so.

Progressives will likely hail the president's "aggressive" new approach to judicial nominations -- if that is what this week's news really means. They will say it is long overdue after a desultory first term on this front. And conservatives will see in the new nominations new opportunities to ratchet up the pace of the filibuster. But why would anyone reasonably think anything is going to change in the absence of new Senate cloture rules, which Majority Leader Harry Reid has been unable or willing to implement? Exactly what is different now? Why would a system that has failed so miserably in the past decade suddenly succeed?

What the nation needs, then, is not another self-defeating partisan showdown between the White House and Senate Republicans over these judges. What the nation needs is for those judges to be confirmed, more quickly than their predecessors have, so that they can resolve the nation's cases and controversies. That much is clear -- as is the likelihood that President Obama's new nominees will have to wait at least a year or so before they finally move on to the first day of the rest of their lives.

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* To demonstrate that these unreasonable delays are not just a result of the so-called "Thurmond Rule," the self-destructive policy wherein judicial nominees are not allowed to come up for a Senate vote in the months before a presidential election, consider the case of Albert Diaz. Endorsed by the Senate Judiciary Committee by a vote of 19-0, with the support of a Republican senator from his home state of North Carolina, it took Diaz 324 days to be confirmed by the Senate.

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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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