Private: The Successful, Remarkable Efforts to Stall Judicial Nominations

Following the successful filibuster of UC Berkeley law school professor Goodwin Liu’s nomination to the federal appeals court bench, Scott Lemieux examines Republican senators’ tactics of delay and obstruction, which are conveniently keeping judicial seats open.

Lemieux, assistant professor of political science at The College of Saint Rose, in an article for The American Prospect, says the process of confirming judicial nominations has “ground to a halt.” Although Lemieux says the president initially had not made enough judicial appointments, he calls the obstruction of the president’s nominees led by Republicans “remarkable.”

He continues:

During the first two years of Obama's term, only 58 percent of his nominees were confirmed. Contrast this with the rate of his predecessors: 74 percent for George W. Bush and 89 percent for Bill Clinton. And they both worked with smaller or nonexistent Senate majorities. The Republican minority has allowed more nominations to proceed to a vote since the 2010 midterms, but overall, Congress has confirmed 30 fewer judges than it did at this point in Bush's first term.

Even more important, the behavior of Senate Republicans suggests that they see maintaining a high vacancy rate under a Democratic president as a plus, not a problem to be fixed. The filibuster of Liu, at least, targeted a specific judge whom Republicans viewed (rightly or wrongly) as ideologically objectionable. The power to advise and consent to judicial nominations does not require the Senate to be a rubber stamp. Much more disturbing is the fact that Republicans frequently engage in a campaign of systematic delay and obstruction. While Democrats under Bush used the filibuster more often, they generally permitted most nominees they considered acceptable to move forward: The average time of confirmation for district and circuit court nominees under Bush was 25 days. Under Obama, the time has increased to 120 days. The advise-and-consent function was designed to improve appointments made, not facilitate obstruction for the sake of obstruction.

In a piece for Slate, Micah Schwartzman, a professor at the University of Virginia School of Law, says President Obama needs to follow of a strategy used by his predecessors of nominating younger candidates for the federal bench.

Schwartzman maintains:

Republicans long ago recognized the fact that younger judges can be intellectual path-breakers and aggressive leaders, which is why they tap them by the handful. If the president is going to nominate younger judges—who are certain to be targeted for filibusters—it makes sense to nominate more of them at the same time. As the Senate Republicans just demonstrated last week, it is not all that difficult to filibuster a single, relatively inexperienced and controversial candidate. But it is much more difficult to filibuster a dozen of them.

For more news and updates on the rising vacancies on the federal bench, visit JudicialNominations.org.

Importance of the Courts, Judicial Selection