Senate Politics Leaves Vacancies on the Bench
Now that the 112th Senate’s second session is taking its first recess, this is an ideal moment to analyze lower federal court judicial selection. The bench experiences 84 vacancies in the 858 appellate and district court judgeships, three of which are in Florida. These openings, which constitute 10 percent of the positions, erode swift, economical and fair case disposition.
Thus, President Obama must expeditiously nominate, and the Senate should promptly confirm, lower court nominees, so that the courts can deliver justice.
Some observers criticized Obama for suggesting too few nominees his first year, but he has since accelerated the pace. The administration has vigorously consulted by seeking the advice of Republican and Democratic senators from jurisdictions with judicial openings before making official nominations. Obama has proffered uncontroversial nominees, who are smart, ethical, hard working and independent, process balanced temperament and are diverse in terms of ethnicity, gender and ideology.
Sen. Patrick Leahy, D-Vt., the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished for months. For example, on Dec. 17, the Senate recessed without considering any of 21 well qualified nominees, 16 of whom the committee unanimously approved, on its calendar because the GOP refused to vote on them.
The principal bottleneck remains the Senate floor. Sen. Mitch McConnell of Kentucky, the Republican leader, has infrequently entered time agreements for votes. The unanimous consent measure, which the GOP deployed in mid December, permits one member to halt floor ballots; this procedure has stalled many nominees. Most troubling has been Republican refusal to vote on noncontroversial strong nominees. When the chamber has eventually voted on nominees, the Senate has overwhelmingly approved many.
The 179 appellate judgeships, 16 of which are vacant, are critical. Obama has proposed strong nominees, and he should continue working with Leahy and Democratic Sen. Harry Reid of Nevada, the majority leader, and their Republican counterparts to facilitate confirmation while nominating excellent candidates for the seven openings that lack nominees.