With the election over, let the haggling begin. I’m not talking about the back-and-forth over the Fiscal Hillock (h/t Jackdawracy at Calculated Risk). I’m talking about nominations.
Petraeus is out at the CIA, and Hillary Clinton has long said she will be leaving after the election. Tim Geithner is likewise expected to leave, though not until the Fiscal Hillock has been dealt with. But I’m not talking about these nominations, either.
Sitting in the lap of the US Senate and the Judiciary Committee thereof are dozens of judicial nominations. These nominees have languished — most for months, and some for years — while the GOP goes about its obstructionist ways. The Sixth Amendment to the US Constitution may guarantee defendants the right to a speedy trial, but it does not guarantee judicial nominees the right to a speedy confirmation process.
Jill Pryor was nominated last February for the 11th Circuit Court of Appeals, and has yet to be voted on by the Senate Judiciary Committee. In fact, according to the SJC website, no hearing has even been held to take up her nomination. Similarly, Srikanth Srinivasan was nominated in June for the DC Circuit, but no action has been taken by the committee — no vote, and no hearing.
And still they wait.
Three other nominees for Appeals court posts have been approved by the committee, but the Senate has not seen fit to bring the nominations to the floor for a vote. Robert E. Bacharach was reported out last June, as was William J. Kayatta, Jr. before him last April, and then there’s Richard G. Taranto, who was nominated to a seat on the Federal Circuit on November 10, 2011. The SJC held a hearing on his nomination in February, and voted the nomination out in March. Patty Shwartz was nominated in October 2011 to the 3rd Circuit, and the SJC voted her nomination out in March.
And still they wait.
But the award for persistence in seeking a US Circuit Court of Appeals seat goes to Caitlin Halligan, a nominee for the DC Circuit. Let’s let wiki tell the tale . . .
On September 29, 2010, Obama nominated Halligan to replace John G. Roberts. On December 22, 2010, the Senate returned the nomination to the President, having taken no action on the nomination in the One Hundred and Eleventh Congress. On January 5, 2011, President Obama renominated Halligan for the same post. On February 2, 2011, the Senate Judiciary Committee held a hearing on her nomination and on March 10, 2011, the Judiciary Committee reported her nomination to the floor favorably, in a 10-8 vote. On December 6, 2011, the Senate failed to invoke cloture in a 54-45 vote, falling six votes short of the 60 votes needed to move forward with a floor vote on her nomination. Her nomination was returned to the President on December 17, 2011, pursuant to the rules of the Senate.
Halligan was renominated on June 11, 2012. Two more attempts to gain cloture on her confirmation failed, and on August 3, 2012 her nomination was again returned to the White House. She was renominated on September 19, 2012.
But it gets worse.
In addition to these nominees for appeals court seats, there are 26 district court nominees awaiting action by the Senate. Of these, Rosemary Marquez (nominated for the Arizona District) has been waiting the longest, having been nominated in June 2011. Her nomination has not even been dignified with a hearing in all that time.
But it gets worse.
According to the US Courts website, there are another 8 appeals courts vacancies for which no nomination has yet been made, and another 39 vacancies at the district court level. 23 of all the judicial vacancies date back at least 2 years.
But it gets worse.
It’s not just the nominees who are left waiting. So are the other judges on the various courts, and the defendants and plaintiffs who face longer and longer waits to have their cases heard. 33 of all the judicial vacancies are considered judicial emergencies because of the overloaded dockets of the various courts because there are empty slots on the bench.
On the one hand, the Senate Republicans deserve a large share of the blame for this mess and these emergencies. They are the ones who have slowed the committee process, and voted to delay consideration of nominees on the floor. (See Halligan, Caitlin.) The GOP, in turn, points to the number of vacancies for which Obama has not even made a nomination, but if the Senate can’t handle the nominations already made, it’s hard to see how their complaint about vacancies holds water.
But the Obama administration isn’t helping things at all by letting the GOP put these nominees in perpetual limbo. By not fighting for their nominees, they only encourage the GOP to keep on doing as they have been. It also, I suspect, makes the process of filling vacancies harder. Today is the one year anniversary of Richard Taranto’s nomination, and I suspect that potential nominees look at that and ask themselves “Is it worth putting my professional life on hold for an unknown amount of time, for the possibility that I might get a hearing and might get a vote and might get approved?” More and more, the answer is probably coming back “no.”
Last December, after the GOP successfully blocked a cloture vote that would have moved Halligan’s nomination to the floor, President Obama said this:
I am deeply disappointed that a minority of the United States Senate has blocked the nomination of Caitlin Halligan to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Ms. Halligan has the experience, integrity, and judgment to serve with distinction on this court, and she has broad bipartisan support from the legal and law enforcement communities. But today, her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country. Today’s vote dramatically lowers the bar used to justify a filibuster, which had required “extraordinary circumstances.” The only extraordinary things about Ms. Halligan are her qualifications and her intellect.
Currently, Senate Republicans are blocking 20 other highly qualified judicial nominees, half of whom I have nominated to fill vacancies deemed “judicial emergencies” by the Administrative Office of the Courts. These are distinguished nominees who, historically, would be confirmed without delay. All of them have already been approved by the Senate Judiciary Committee – most of them unanimously – only to run into partisan roadblocks on the Senate floor. The American people deserve a fair and functioning judiciary. So I urge Senate Republicans to end this pattern of partisan obstructionism and confirm Ms. Halligan and the other judges they have blocked for purely partisan reasons.
In their comments over the last few days about the Fiscal Hillock, both Obama and Boehner have been speaking about bipartisanship, about reaching across the aisle, and about working with the other side in good faith. Others in both parties have been doing the same, both in the executive branch and in both houses of Congress.
Words are cheap, folks. If the Republicans want leverage in the financial negotiations, action on these stalled judicial nominees would be in their best interest. “Here’s proof that we can work across the aisle.” It takes away the charge of obstructionism, and gives them a better footing on other issues.
Words are cheap for Obama, too, especially when it comes to nominations. In legal circles, the manner in which Obama treated the nomination of Dawn Johnsen to head the Office of Legal Counsel is probably the most egregious example of not fighting for a nomination. The 60 Senate votes for her confirmation were there, and still Obama and Reid never forced a vote on the floor. If Obama wants leverage in the financial negotiations, he needs to demonstrate that he is actually willing to fight for his proposals and can make the GOP pay a price for their intransigence.
The only thing that has changed since Obama made his remarks last December about the cloture vote on Halligan is that the GOP has continued stalling things. The lesson the GOP took from this is simple: delay works. If Obama wants to make clear to the GOP that his words mean something, he’s got to demonstrate that he’s willing to make them pay a price for delaying and obstructing. Some departing GOP Senators might be more willing to stand against obstructionism during the lame duck session. (Snowe and Lugar come to mind immediately, and given the emergencies in Arizona and the 9th Circuit, perhaps even Jon Kyl would get on board.) Calling the GOP out on these delays, day after day, might be a good start. Proposing — and, if necessary, making — recess appointments to deal with some of these judicial emergencies would be an excellent followup if obstruction continues.
Everyone who follows these things knew that any action this summer, as the election was getting into full swing, was not going to happen. Well, the election is over . . . and still the nominees wait. The judicial emergencies continue, and justice is increasingly delayed for thousands as dockets around the country continue to build.
Both Obama and the GOP need to demonstrate that they can do more than simply talk about working with one another; moving forward on these judicial nominations would be a good place to turn their pretty words into action.
image h/t to Sovereign to Serf – Roger Sayles aka Serfs Up!