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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