Tuesday, October 27, 2009
Slate Magazine: The Bench in Purgatory, by Doug Kendall:
It's still early in President Obama's first term, but not too soon to conclude that the president's effort to "put the confirmation wars [for judges] behind us" is not going well. Only three of his 22 lower court nominees have been confirmed so far. The latest one, Roberto Lange for a federal district court in South Dakota, was cleared last week after waiting for three and a half months (including three weeks on the floor). The slow pace of the president's nominations is part of the problem. But the larger issue is a new form of obstructionism in the Senate.
It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees. If this continues, it will worsen an already serious problem of vacancies on the federal courts. And it will discourage from ever entering the confirmation process precisely the type of nominees both parties should want.
Over the past several decades, senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going president's term in office. To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. While there has never been an agreed-upon definition of what that means—it's an eye-of-the-beholder type of thing—there has consistently been a large category of nominees that are not considered controversial. They have typically made it easily through the Senate confirmation process, no matter how rough the ride is for their controversial counterparts. . . .