The judicial confirmation crisis

posted at 5:31 pm on March 16, 2013 by Jazz Shaw

Among the many things not getting done in Washington these days, filling up the bench of the Judicial branch is still near the top of the list. This backlog of judicial nominees has been going on for at least a decade now, with some ebbs and flows in high profile cases. The D.C. Circuit Court – one of the most influential on national matters and a frequent launching point for Supreme Court justices – currently has four of its eleven seats vacant. Have we reached a confirmation crisis? Jeffrey Toobin certainly seems to think so.

During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan “Gang of Fourteen” Senators announced a truce. Democrats agreed to allow votes on Bush’s nominees in “all but extraordinary circumstances,” and they kept to the deal. Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it—as the Halligan filibuster demonstrated.

Toobin is talking about the filibuster of Caitlin Halligan to the Court of Appeals for the D.C. Circuit. Republicans have focused on a brief she wrote when working for then NY District Attorney Andrew Cuomo, in which she supported the idea of holding gun manufactuers liable for damage done with legally purchased weapons. It’s a horrible, unconstitutional idea – in my opinion, anyway – but to be fair, it was written for her boss to support his position. Other than that, I’m not sure how “unqualified” she is.

Dr. James Joyner has more.

There’s an argument to be made for high level scrutiny being applied to federal judges generally—it’s a lifetime appointment, after all—and for appellate judges in particular—they set precedent that guides thousands of cases. While my longstanding view is that a 60 vote requirement for confirmation is extraconstitutional, if not unconstitutional, I’m amenable to the argument that judicial nominees ought to be well within the mainstream; presidents shouldn’t be able to radicalize the legal system for decades to come by virtue of a slim Senate majority.

But we’re well past that. Senate Republicans aren’t standing firm against radical judges but against Democratic judges. And, no, the two aren’t synonymous; the American people have, after all, elected a Democratic president two cycles in a row and Democrats got more votes for both the House and Senate as well…

There may be a middle ground option, whereby judicial nominees would be required to obtain, say, 55 votes for confirmation in exchange for the inability to filibuster or otherwise block a vote. In most cases, that would mean at least a couple of votes from the opposition party. In all cases, it would seem enough of an indicator that the nominee isn’t an extremist. But even that sort of compromise is unlikely to be achievable in the current climate.

I realize those opinion pieces will rub most Republicans and conservatives the wrong way because of the name and party of the person doing the appointing these days, but it’s hard to deny that this is a problem. We do need to keep the benches filled, and there will only be one President at a time doing it. The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief. It’s difficult to imagine a way out of this mess, though.

There is no impediment to Joyner’s suggestion of requiring 55 votes for confirmation instead of sixty to break a filibuster. That restriction is just part of the Senate rules, which they can change at any time. But it would require the will to do it, which – as Dr. Joyner notes – probably doesn’t exist. So what do we do? This isn’t a debate on something like taxes or spending. There is no “let it burn” path available. If you don’t have the courts, the system breaks down. Any suggestions?


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Other than that, I’m not sure how “unqualified” she is.

Other than that, Mrs. Lincoln, what did you think of the show?

C’mon, Jazz. How much material needs to be put on the scale before you think you have enough to make a fair decision? Are there no disqualifying resume items?

There is no “let it burn” path available. If you don’t have the courts, the system breaks down. Any suggestions?

Congressional term limits.

BobMbx on March 16, 2013 at 5:37 PM

Oh no! Oh no! Oh no! Another crisis! Surly the sky will hit us all on the head yet! Everybody duck!

VorDaj on March 16, 2013 at 5:41 PM

…stall them!

KOOLAID2 on March 16, 2013 at 5:43 PM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief

…tough!…less damage!

KOOLAID2 on March 16, 2013 at 5:45 PM

Any suggestions?

Congressional term limits.

BobMbx on March 16, 2013 at 5:37 PM

…and age limits!

KOOLAID2 on March 16, 2013 at 5:47 PM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief

And this is bad, why? Restraints are the entire purpose of the constitution.

nobar on March 16, 2013 at 5:48 PM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief.

Oh man, this Jazz Shaw person is such a jokester!

Stop!

Stop!

Oh man, my stomach hurts!

Stop!

Stop!

Oh, my stomach!

OhEssYouCowboys on March 16, 2013 at 5:48 PM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief President [emphasis mine].

OhEssYouCowboys on March 16, 2013 at 5:53 PM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief President [emphasis mine].

OhEssYouCowboys on March 16, 2013 at 5:53 PM

And, I’m still laughing!

Ow!

Ow!

My stomach!

OhEssYouCowboys on March 16, 2013 at 5:55 PM

How about not making every belch and fart by the public a federal offense? How about relegating “make a federal case out of it” back to the jeering, schoolyard taunt that it used to be?

By federalizing nationalizing everything, by trying to run the nation through a Congressional power hand-off to agencies and faceless bureaucrats, by putting a federal national dimension to every offense Congress has fantastically increased the requirement for federal national judges. Our ever-expanding oversight by Washington DC has brought this on. Yes, there is a “let it burn” strategy available, and that is exactly what we are doing. And it’s working perfectly.

ss396 on March 16, 2013 at 6:04 PM

First the (latest)gay marriage thread and now this? Why don’t we all just roll over and let the left and the squishes run right over us?

Edith Stifle on March 16, 2013 at 6:11 PM

This whole “let’s be nice to them so they will be nice to us” bit is such a load.

Edith Stifle on March 16, 2013 at 6:13 PM

Solution: No lifetime judicial appointments. Reconfirm every 2 years.
Term limits-
House 2 yrs
Senate 6 yrs
Pres 4 years
NO Re-elections.
Represent your people/ state and go home.
“But they wont have time to do what they need to do in one term!”
We don’t elect them to DO anything. We elect them to represent. After 230 years they should be done with everything that needed to be done. Sit back,let us live our lives and deal with the little things that come up from time to time. Where did congress get the idea that they need to be in session 340 days per year enacting legislation?

tdarrington on March 16, 2013 at 6:19 PM

Jazz what is more important….A Budget or more liberal judges who will strip us citizens of our rights?

Conservative4Ever on March 16, 2013 at 6:20 PM

Alberto Gonzalez.

Also, I thought I read this week that during the Bush Administration the compromise was “let some of our go through, and we’ll nominate and confirm some of yours.”

BuckeyeSam on March 16, 2013 at 6:20 PM

Everything is a crisis these days. I’m surprised we don’t get another ‘crisis’ announcement, complete with banner headline, every time a congress member is late to the office.

“Traffic Crisis Strikes DC!”

While I’m sure that we could use more judges, and perhaps it would be handy if we could get them to the bench a little faster, this isn’t the issue that I’m attempting to address.

I’m addressing the fact that we, the public…you remember us?…the electorate?… are becoming increasingly desensitized to the every increasing number of crises, some real, some manufactured, some incidental, some trivial, which assail us every day.

It’s much like “…the war on ________.” There’s another one every day. Some important, some trivial, some manufactured… almost none of which are real wars.

It won’t be long before the government and the media cry ‘crisis’ one time too many… and we all just shrug it off as yet another in the seemingly never ending line of crises.

I wonder what the new term will be to get our attention, win our sympathy, or focus our ire.

thatsafactjack on March 16, 2013 at 6:23 PM

thatsafactjack on March 16, 2013 at 6:23 PM

A crisis of crises.

tdarrington on March 16, 2013 at 6:30 PM

tdarrington on March 16, 2013 at 6:30 PM

LOL! Very good.

thatsafactjack on March 16, 2013 at 6:33 PM

I realize those opinion pieces will rub most Republicans and conservatives the wrong way because of the name and party of the person doing the appointing these days, but it’s hard to deny that this is a problem. We do need to keep the benches filled, and there will only be one President at a time doing it. The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief. It’s difficult to imagine a way out of this mess, though.

It’s not that difficult to imagine a way out: judicial elections.

Putting up 1/3rd of SCOTUS and lower-level Federal courts for election alongside every midterm election would do the trick.

Stoic Patriot on March 16, 2013 at 6:45 PM

Change life appointments into an appointment for the number of years equal to the net Senate confirmation vote. If confirmed 51-50, term is one year; if confirmed 55-45, term is 10 years. If confirmed 98-0, term is effectively life (few justices will survive to put in 98 years on the bench).

cthulhu on March 16, 2013 at 7:23 PM

When you can predict the outcome of an idealogically charged case based on who nominated the judge as opposed to what the constitution/laws say, you know that our justice system has failed the citizens of this country.

iamsaved on March 16, 2013 at 7:26 PM

Once the democrats favorite method of passing laws extra-constitutionally through the courts for things they couldn’t get through the legislature – what did you expect. I hope the courts have fewer and fewer judges and that DC can realize it was their own damn fault. ANy law clerk who found a way to defend an expansion of tort law against an item held as a right in the constitution has no business on the bench.

Sucks to be her. And it wasn’t the GOP who started the notion of filibustering judicial nominees either. It was our statist friends of the left. Too bad.

Zomcon JEM on March 16, 2013 at 7:40 PM

We are not in a culture war – we are in a political war now – and DC is begnning to realize it. Bullets are next if we aren’t careful. History has a funny way of repeating itself with a few twists thrown in for fun. The democrat party does not believe in the republic, in fact it would be fair to say it is in critical condition if it isn’t dead already. ALl due to DC.

We think that since it has been a great run for all these years it is impossible we could experience real hardship like the end of Rome or the fall of Germany or the long slow death of England, where they now dance to the formation of the NHS – which repays them by killing its patients with poor care.

It can fall to total mayhem. The dark ages can return. Just because it sounds crazy – doesn’t mean it isn’t possible.

Zomcon JEM on March 16, 2013 at 7:50 PM

It’s a horrible, unconstitutional idea – in my opinion, anyway – but to be fair, it was written for her boss to support his position.

Yeah … she was just “following orders” to help a politician violate his oath and destroy the Constitution. No big deal … nothing to hold against her. We’re lucky that Cuomo didn’t ask her to rub out anyone, though if she had, it would only be “following orders” … not like she actually disliked the people she snuffed …

WTFFF, man?!

ThePrimordialOrderedPair on March 16, 2013 at 8:17 PM

There is no “let it burn” path available. If you don’t have the courts, the system breaks down.

Whahuh??? The system breaking down is the let it burn option.

Fenris on March 16, 2013 at 8:23 PM

There is no “let it burn” path available. If you don’t have the courts, the system breaks down.

Assuming the system wasn’t broken down to begin with, which is utter naievety.

Let it burn anyway.

Myron Falwell on March 16, 2013 at 8:24 PM

There is no “let it burn” path available. If you don’t have the courts, the system breaks down.

The courts made mockeries of themselves through their refusal to even hear anything about the Indonesian’s lack of eligibility. Then they compounded things by rubber-stamping some of the most egrigious violations of the Constitution one could even imagine such as with that incredibly lunatic feral government bailout of GM (which was determined to be a “toxic asset” ripe for TARP monies) and the trampling of the integrity of contracts in letting the secured bondholders be screwed royally – to the benefit of the unions and politicos.

Finally, Benedict Roberts burned down the last shred of integrity that the judiciary might have had left. After his insane decision there’s nothing left of the system – not to anyone with even a smidgeon of rationality. The judicial system is nothing but a big, bad joke populated with mental midgets, nutcases, and criminals.

ThePrimordialOrderedPair on March 16, 2013 at 8:29 PM

ANYTHING that slows down the leviathon is good.
The courts (see “conservative” John Roberts) are just another part of the same problem.
Burn it ALL down.

graywolf on March 16, 2013 at 9:23 PM

Suggestion? Sure. Have the president appoint Miguel Estrada to a seat on the DC Circuit. The Dems jumped the shark in opposing Judge Estrada, for no earthly reason other than that he was Hispanic. Which is kinda racist, when you think about it. If they are serious about generating the goodwill necessary to solve the problem, Judge Estrada has to get his seat.

Zumkopf on March 16, 2013 at 9:42 PM

James Joyner is not a true conservative. I would list him as a RINO if he claimed GOP membership. His failure to understand the difference that has disappeared between the radical left and Democrats only bears this out.

Zelsdorf Ragshaft on March 16, 2013 at 10:31 PM

It’s a horrible, unconstitutional idea – in my opinion, anyway – but to be fair, it was written for her boss to support his position. Other than that, I’m not sure how “unqualified” she is.

So it’s just a matter of how much the time costs.

unclesmrgol on March 16, 2013 at 11:19 PM

I guess I haven’t said this one of Jazzs posts lately:

You are a jackwagon!

I have figured out what you are. You – and some of your friends – don’t belong here you elitist dilettante.

williamg on March 17, 2013 at 2:15 AM

There is NOT equal guilt in this regard. It was Democrats who began to obstruct well-qualified Republican nominees, beginning with Bork. Actually, even further back than that, with Haynsworth, a man of impeccable judicial credentials who, by virtue of where he resided, could only play golf on a decent course by joining an all-white country club.

The idea that we must now defer to neo-Marxist judges, whose view of the Constitution is that of a blank canvas upon which they are free to smear fecal graffiti, just because the Democrats created a situation of empty benches is just preposterous.

Adjoran on March 17, 2013 at 2:25 AM

Relying on Toobin – big mistake

Here’s hilarity – Joyner:

Senate Republicans aren’t standing firm against radical judges but against Democratic judges. And, no, the two aren’t synonymous

I have 70 years of proof. What evidence do you provide?

Ed Whelan at NRO has been keeping judicial confirmation data for a few years now because this was constantly put forth 2010-2011, and now only occasionally. This isn’t the first time from Toobin, but Whelan has refuted most, if not all, assertions. Not sure if he has any posts for Toobin’s current article. Toobin is simply using his pulpit for a New York lawyer (career government is notable). I assume he’ll get an interview for this slobber.

Suggestions? Yes!! Reaffirm the correct abilities of Article 3 courts. At base, they are merely arbitrators of cases before them, criminal and civil (in Law and Equity). They have no legislative authority. A Power ceded to itself is not valid. That is why the courts have lifetime appointments (apolitcal); otherwise they need to come up for review. There was never an intent for a Court to affect society by case law. Enter, the last 70 years…

There is a reason that left-wingers, pinkos of every stripe, anti-Americans, counter-culturalists, etc. go to Law School and send their fellows there as well. How many activists have Law Degrees? Probably 80% at least do, followed by economic degrees. Reaffirm the U.S. Constitution, and most problems will be solved. Unfortunately, the masses are complacent with all our goodies; therefore, this won’t be a “winning” argument, but it will be correct and true.

City, County, State governments…get em…keep em. Be the Bulwark.

John Kettlewell on March 17, 2013 at 3:00 AM

Funny how leftist commentators didn’t consider it a “crisis” when the Dems were obstructing Miguel Estrada or when then-Senator Obama voted to filibuster Judge (now Justice) Alito. The Dems and their media auxiliaries want the GOP to play by Marquess of Queensbury rules (and idiot Republicans often oblige them) while they themselves play a long game using Alinskyite mixed martial arts tactics. I say give the party of Ted Kennedy and Bull Connor the brass-knuckle treatment on judges. Payback’s a bee-yotch, nome sayin’?

Travis Bickle on March 17, 2013 at 3:35 AM

So the sky is falling because Republicans have blocked a total of 3 of Obama’s judicial nominees? Right…

The real problem here is that Democrats decided to scorch the Earth on Republican nominees and don’t like Republicans returning the favor.

Outlander on March 17, 2013 at 6:39 AM

The handcuffs you put on Barack Obama now will still be worn by the next GOP Commander in Chief.

Jazz Shaw

Those “handcuffs” are used – they’ve been worn by Republican presidents since the mid-80′s.

The “Gang of Fourteen” deal only got certain Bush 43 nominees a confirmation vote – other nominations died.

This is the judicial confirmation world the Democrats created. They had no problem with it when they used these tactics against Republican nominees; they get to live in it now.

Want it to stop? Fine – next time there’s a Republican president, the Democrats can give every one of his / her nominees a confirmation vote. When the Democrats demonstrate they’ve abandoned these tactics, then we can move on.

Until then, no.

BD57 on March 17, 2013 at 7:44 AM

Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction.

Um…last I heard, Sotomayor and Kagan are sitting Supreme Court justices.

Mitoch55 on March 17, 2013 at 9:13 AM

Haven’t we learned yet that the left *Never* lives up to any long term agreements? Any agreement to confirm today is nothing but unilateral surrender, since as soon as there *is* a GOP President all previous “deals” will be null and void.

And yes, it’s gotten to the point that I would rather see *No* confirmed judges and a complete collapse of the system rather than a system run by Obama appointees.

Let it Burn – because I, and the people I care about, are going to burn if Obama gets his way. I like my chances better in the rebuilding.

Tom Servo on March 17, 2013 at 10:59 AM

There is a hidden consequence. I read recently that former Supreme David Souter is filling in at one of the circuit courts for 3 months each year. I’m sure there are many retired justices who are doing the same thing.

Instead of just stopping qualified nominees cold without any thought, maybe Senate GOPers should ask: How much worse would the new nominees be than someone like Souter?

EconomicNeocon on March 18, 2013 at 11:05 AM