Deep within the Bottleneck

The political appointment game in Washington is designed from the get-go for horse-trading. Nowhere is this “tradition” more apparent than in the appointment of federal judges who serve for life, subject to Senate confirmation by a simple majority vote (after initial vetting by the Senate’s Judiciary Committee). Since most of these sitting judges reside in federal courts in specific individual states, the general protocol is for the President to receive “recommendations” for many of these appointments from the Senators who represent the individual states. The President is supposed to cull through this list, perhaps eliminating recommendations that really go against his grain, and use this confirmation list to trade for his favored appointments to some of the higher appointments on the federal bench. It’s the way things have been done for a very, very long time. Until now.

Today, there are 82 vacancies on the federal bench, but the process is at a near-total standstill. The President has been so frustrated that he hasn’t even bothered to place names in nomination for 61 of those vacancies. He’s actually nominated fewer names in his first term than either George W Bush or William J Clinton did in theirs. It’s pretty clear that the GOP, both in the House where they represent the majority and in the Senate where the filibuster gives them de facto veto rights, is determined to stop just about any meaningful legislation that the President might want, from funding the Affordable Care Act passed in 2010 to confirming a majority President’s Obama major federal appointments.

Since the protocol is to wait for the various Senators to initiate the process with their local recommendations, the first stumbling block is the refusal of many Republicans, particularly in states where both Senators are GOP, to offer any names. “Take Kansas, for example. The state is represented by Republican Sens. Pat Roberts and Jerry Moran, neither of whom has put forward nominees for a district court slot there that has been vacant for 1,246 days. Their inaction hasn't gone unnoticed -- both senators have taken heat for not participating in the nomination process.

“Or look at Texas, where Republican Sens. John Cornyn and Ted Cruz have not moved to fill seven vacant judicial slots, two of which have been vacant for 1,733 and 1,034 days, respectively, without a nominee. At least one Texas paper ran a piece suggesting Cornyn and former Texas Republican Sen. Kay Bailey Hutchison were holding off on making judicial recommendations because they were hopeful Mitt Romney would become president in 2012.

“There are four vacant judicial slots in Arizona, one of which has been vacant for 1,132 days. Neither of the state's Republican senators, John McCain and Jeff Flake, have put forward a nominee for any those spots.

“In total, 25 of the 61 vacancies without nominees are in states with two Republican senators, and another 14 are in states with one Republican senator and one Democratic senator. That means many of the vacancies without nominees can be traced back to Senate Republicans who just aren't participating in the process -- a reality that flies in the face of Republicans' chief complaint that Obama isn't putting forward enough judicial nominees…

“Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, … noted that the median time circuit court nominees have had to wait before a Senate vote has jumped from 18 days under Bush to 132 days under Obama. On top of that, he said, the 82 judicial vacancies around the country is nearly double the number that existed at this point in the Bush administration.” Huffington Post, April 30^th.

Even for nominees who clear the Senate Judiciary Committee with strong support, the average waited for a confirmation vote is 116 days, three times longer than the comparable wait during the last Bush administration. With the mid-term elections slated for next year, it is exceptionally unlikely that there will be any material change in this very partisan and bitter process.

There is a sense of crisis today, in that there are way too few federal judges available to handle the massive caseload that awaits them. “Thirty-six of the current vacancies are considered ‘judicial emergencies.’ At the circuit courts, that means that because of the vacancies, the number of cases per panel of judges exceeds 700, or stays between 500 and 700 for more than 18 months. In district courts, it means the number of cases per individual judge is more than 600, or between 430 and 600 for more than 18 months. The more overloaded judges are, the more delayed the process of moving civil and criminal matters through the justice system.” Huffington Post.

There are nascent signs that the creaky wheels of Congress may be yielding to a stepped up effort to see the confirmation process solve this crisis, avert the embarrassment factor that has built up over the years and perhaps avoid a reciprocal response from Democrats should the Republicans take over the Presidency again. A token rapid confirmation – Jane Kelly of Iowa to be a circuit court judge – symbolically suggests a possible change. We’ll see, but the frustration that the public feels at this roadblock GOP strategy generally does not seem to have engendered a new mood to compromise. The system remains broken.

I’m Peter Dekom, and this atmosphere that eschews compromise is a continuing supply of nails for the coffin of American democracy.