Progress on Judicial Nominations, But Process Needs Reform

December 6, 2012

by Jeremy Leaming

So the Senate is making some progress on confirming judges, but that progress should not mask the reality of a politicized process that has created a high vacancy rate on the federal bench. The 113th Congress has plenty of work on its plate, and it should include fixing the judicial nominations process that has hobbled the judicial system.

Though the Senate confirmed two district court judges today – Mark Walker and Terrance Berg – both were approved months ago by the Senate Judiciary Committee. But Republican senators have throughout Obama’s first term greatly slowed the confirmation process, even for district court judges. This year, many Republicans claimed that during a presidential election year fewer judges should be confirmed, so the backlog of judges to be confirmed continued to swell, with more than 80 vacancies on the federal bench. Some Republican senators are now claiming that it is very rare for judicial nominations to be considered during lame-duck sessions of Congress. Sen. Chuck Grassley, as noted here recently, lauded his colleagues for allowing floor votes this week on a few of the pending judges.

But Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted Republicans for making the wobbly claim that judicial nominations should not be considered during lame-duck sessions. “I urge them to reexamine the false premises for their contentions and I urge the Senate Republican leadership to reassess its damaging tactics,” the senator said in a Dec. 6 statement. “The new precedent they are creating is bad for the Senate, the federal courts, and most importantly, for the American people.”

Beyond pushing the canard that judicial selections are not considered during lame-duck sessions of Congress – judicial nominees were confirmed during such sessions in 2004 and 2002 – Grassley and Sen. Minority Leader Mitch McConnell have argued their party has not abused the filibuster to slow or halt consideration of legation or judicial nominations and that the filibuster cannot be reformed. (The Federalist Society, a group Grassley and McConnell are very familiar with has explained why the filibuster should not be used against judicial nominations and why the Senate can indeed change the filibuster.)

With support of Sen. Majority Leader Harry Reid (D-Nev.), Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) are pushing a plan that would blunt the use of the filibuster. In a column for USA Today, Udall noted that his party, in the majority since 2007, has “faced the highest number of opposition filibusters ever recorded.” He notes, as others have, that Republicans have used the filibuster or threat of it to halt consideration of numerous bills as well as judicial nominations.

Citing the Constitution, Udall (pictured above) says a simple majority of the next Congress could and should change the filibuster. “It’s time for the Senate to change the way it does business,” Udall wrote. “Our nation can ill afford continued gridlock. The stakes are too high. The challenges are too great. Come January, we must use our constitutional authority to restore functionality to the Senate and move forward on the work the American people demand of us.”