Private: Record-Low Confirmation Rate Highlights Need for Rules Reform, Experts Say

The Senate adjourned yesterday evening having confirmed half of the 38 judicial nominees that had been approved by the Senate Judiciary Committee, and leaving almost 100 vacant seats unfilled.

To be considered by the new Congress, the 43 remaining nominees will have to be re-nominated by President Obama, and the 19 already approved by the Judiciary Committee will have to be vetted there again - some for the third time.

Legal experts concerned with the record-high judicial vacancy rate pointed to the Senate rules as a primary cause, calling for immediate reform to a number of the Senate's most arcane procedural devices in an ACS press release issued yesterday.

"The record number of vacancies on the federal bench has a serious impact on the daily lives of Americans, delaying or denying justice," said Caroline Fredrickson, executive director of the American Constitution Society. "We hope these recent confirmations signal an end to the ongoing effort by some members of the Senate to prevent judicial nominees from even receiving a vote."

"But the underlying problem - the present state of our Senate rules - is a key factor contributing to this record-high vacancy rate by enabling senators' continuing obstruction through filibuster threats, anonymous holds and other means," she added.

University of Minnesota law professor Richard Painter, who served as chief ethics lawyer for President George W. Bush, decried the Senate's failure to take up-or-down votes on each nominee approved by the Senate Judiciary Committee.

"The only explanation for the delay is political gamesmanship," he said. "Many Republicans, who in the past have been on record opposing the filibuster of judicial nominees, are now impeding the functioning not only of the Senate, but also of the federal bench, which is faced with a disturbingly high number of vacancies. This is not good for the Republican Party, for future Republican judicial nominees or for our Country."

Michael Gerhardt, a constitutional law professor at the University of North Carolina, lamented that both judicial nominees and "nominations for key government positions, including Deputy Attorney General," faced "historic opposition."

"The obstructions of these nominations impede the functioning of both the courts and the Justice Department," Gerhardt said. "The American people deserve better from the confirmation process."

Ezra Klein reports in The Washington Post that every Senate Democrat returning in January has signed a letter calling for filibuster reform - "not just the young senators like Jeff Merkley and Tom Udall and Michael Bennett, but the older veterans like Barbara Mikulski and Dianne Feinstein and Carl Levin." Klein notes:

Their unity stems from an unlikely source: Minority Leader Mitch McConnell, who has mounted more filibusters in the past two years than occurred in the '50s and '60s combined. Uncontroversial bills like an extension of unemployment benefits that passed 97-0 and food-safety legislation that passed with 73 votes frequently faced multiple filibusters and months of delay. The minority has been so relentless and indiscriminate in deploying the once-rare failsafe that the majority has finally decided to do something about it.

A number of organizations also expressed concern that Senate obstruction was focused on minority nominees, both for circuit court nominees such as Stanford constitutional law scholar Goodwin Liu, but also for district court nominees who have "historically been granted more deference." People for the American Way notes the following district court nominees who were blocked by the Senate, and the reasons for obstruction:

• Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection
• U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union
• Benita Pearson, whose nomination was opposed because she is a member of groups opposed to animal cruelty
• William Martinez, who was opposed for his pro-bono work with the ACLU of Colorado (including providing support for a high school student sent home for wearing an anti-Obama t-shirt)

Even for those who were confirmed, long waits for nominees in jurisdictions considered judicial emergencies have been attributed to Senate obstruction.

Sen. Ben Cardin expressed gratitude that Albert Diaz was confirmed this week to a seat on the U.S. Court of Appeals for the Fourth Circuit, but noted that Diaz always enjoyed bipartisan support, and was confirmed unanimously by the Senate Judiciary Committee in January 2009.

"I am disappointed that it has taken the Senate almost a full year to take final action on this nomination," he said.

Access to Justice, Importance of the Courts