Just before leaving town for the August recess, senators confirmed four of President Obama’s judicial nominees. The disappointing news is that they left 20 perfectly qualified nominees languishing on the floor without a vote.
Sixteen of the 20 had sailed through the Senate Judiciary Committee without a single “nay” vote from either party. Nine were slotted to fill long-vacant seats that have been designated as “judicial emergencies” by the Administrative Office of the U.S. Courts. Eight have been waiting for at least three months for a floor vote. As if this was not perturbing enough, the seat-saving obstructionism that accompanies an election year and brings confirmations to a standstill now looms.
There are 88 federal court vacancies, and five judges have announced their plans to retire. Mr. Obama was woefully slow in sending up nominations early in his term, nominating only 34 in 2009. But he has picked up the pace, with 71 nominations in 2010 and 50 so far this year. Yet the Senate has confirmed just 35 Obama judicial nominees this year — with only three for the courts of appeals. The responsibility for lingering vacancies now lies primarily with Capitol Hill.
There was a time when battles over judicial nominees, especially those tapped for the federal courts of appeals, served as proxies for ideological principles. Liberals bodyblocked confirmation of such young conservatives as Miguel Estrada, who they believed took too cramped a view of constitutional rights. Conservatives threw down the gauntlet over such young liberals as Goodwin Liu, who they feared would transform the bench into a legislative podium.
It was wrong, in our view, to deny either man confirmation — and to deny the presidents who nominated them their choices. But at least these battles were about something real. What excuse is there to hold up confirmation for uncontroversial trial court nominees?
The gamesmanship is not only frustrating but also destructive.
