How Congress and the White House Eviscerate the Judiciary

Partisanship and incompetence leave federal judges home alone.

  he Supreme Court will begin hearing oral arguments on the President Obama's health care reform bill in Washington The United States Supreme Court is seen one day before the court will begin hearing arguments on the constitutionality of President Barack Obama's health care reform bill, in Washington on March 25, 2012. UPI/Kevin Dietsch     (National Journal)

The dysfunctional relationship between Congress and the White House threatens to erode the third and least-political branch of government: the judiciary.

Like so much about Washington, the U.S. court system is a victim of the raw partisanship and incompetence infesting both major parties. Yes, this is another pox-on-both-houses story.

Democratic President Obama shines a light on the problem today in nominating three candidates to fill the remaining vacancies on the U.S. Court of Appeals for the District of Columbia Circuit.

It is considered the second-most powerful court in the country, the arbiter of major cases and a platform for future Supreme Court nominees. By nominating a trio of jurists, a unique maneuver, the president hopes to put pressure on Republicans to confirm them.

Good luck with that, Mr. President. The former constitutional lawyer knows that the fight to fill the D.C. court is part of a broader question: Is the system for filling judicial vacancies broken?

Look at the numbers:

There are 81 vacancies on the federal bench, a nearly 50 percent increase since Obama took office. His predecessors fared much better.

Within the first three years of President George W. Bush's term, there was a 65 percent decline in vacancies, according to the Alliance for Justice. President Clinton reduced openings by 34 percent.

Another troubling metric: The time it takes to confirm a nominee has skyrocketed, a trend that makes the federal bench less appealing to the best and brightest. Obama made 212 nominations with an average wait of 224 days until the confirmation phase, according to data compiled in November 2012 by USA Today from the White House and the Alliance for Justice.

At the same point in their tenures, Bush had nominated 225 lawyers with an average wait of 176 days, while Clinton made 237 nominations with an average lag of 98 days.

The most obvious cause of these numbers is GOP obstructionism. More than a Democratic talking point, it is a fact that Republicans consider undermining Obama as their clearest path to victory, individually and collectively. In fairness, Democrats during the Bush years were mindlessly partisan — although, according to the numbers, not quite as ruthlessly effective as the GOP today. In Washington, party often comes before country.

Some Democrats want Senate rules changes that would deny minority-party Republicans the right to demand 60 of the Senate's 100 votes in order to pass legislation or confirm nominees. But so-called filibuster reform will look far less appealing to Democrats when Republicans control the Senate.

The problem goes beyond the Senate filibuster and to the power the home-state senators traditionally wield over judicial nominations. In a Brookings Institute briefing paper, Russell Wheeler notes that almost half of the vacancies without nominees are in states with two GOP senators. The time from vacancy to nomination was greater in states with two GOP senators, he wrote.

"Although it is difficult to apportion responsibility for the number and age of nominee-less vacancies and the longer times from vacancy to nomination, we should consider a specific proposal for more transparency about pre-nominations that might produce more nominations, more quickly," Wheeler wrote.

In other words, let the public know more about the back-channel negotiations between the White House and senators. What candidates are being floated by the White House? How and why are Republicans exercising a quiet veto?

Ultimately, the question is: Why can't Democrats and Republicans work together to fill the federal bench?

"We can only speculate," Wheeler writes, "but no doubt both the Obama White House and at least some of the senators bear some responsibility for the high number of long-lasting nominee-less vacancies, and the long times from vacancy to nomination."

"Perhaps the Obama White House has been slower to suggest potential nominees in states with Republican senators, or react more slowly to suggestions from these senators," he wrote, adding that GOP senators may be objecting to nominees more than past Democrats.

Both sides are to blame, even if not equally. Neither the White House or the Senate will own up to that fact.

Sadly, we know where this is headed.

Liberal commentators will demand that Obama stop bargaining with GOP senators, eradicate the filibuster, and force his nominees to the bench. Conservative commentators will agitate for more stonewalling of nominees who don't meet their right-wing litmus tests.

And the judiciary will suffer.