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Judicial Nominations: The Problem and Solution

There are currently 82 vacancies in the federal judiciary. A recent article in one of my favorite liberal rags- The Nation- states that the “obstructionist” Republicans in the Senate are holding up the judicial process in the US. This is part of an article by Ari Berman which addresses not only this issue, but the importance of the Supreme Court in relation to this year’s election. He declares that this Court, besides the possibility of striking down Obamacare, will also rule on Arizona’s immigration law, but in the coming terms could weigh in on gay marriage, affirmative action programs, terrorist detainees, corporate expenditures in elections, Section 5 of the Civil Rights Act and abortion. He is yet another liberal voice urging the President to take on the Court in this campaign.

Citing several statistics- most of them misleading- he leads one to believe to that Republicans are holding up judicial nominations. Noting the 82 vacancies, he claims that an Obama nominee has had to wait 5 times longer for confirmation than the average Bush nominee. However, looking at the current nominees, they have waited an average 5.3 months. Is Berman suggesting the average Bush nominee waited a month? I seem to remember talk of the “nuclear option” regarding Bush nominees which would suggest that the problem was certainly more acute in the Bush Administration. In reality, part of the problem lays at the feet of Obama himself, but naturally he blames someone else.

Of the 82 vacancies, Obama has made only 32 nominations. In terms of the Senatorial hold being exercised by a Senator from the nominee’s home state, Republicans can exercise that courtesy in only 37.8% of the nominees. Furthermore, of the 32 nominees, 17 are still pending before the Senate Judiciary Committee. Hence, greater than 50% of the nominees are actually being held up by the Democratic-controlled Judiciary Committee for whatever reason. The average time from nomination to the present for these 17 nominees is 2.9 months, considerably lower than the 5.3 months.

The Committee consists of 18 members- 10 Democrats and 8 Republicans. The use of the Senatorial “hold” is often cited as a reason for the delay and effectual individual filibuster of a judicial nominee where the nominee never even gets their “day in court” before the Committee. However, I can find only three instances of this being the case. The first is a hold on Patty Schwartz to the 3rd Circuit Court of Appeals excercised by Robert Menendez (D-NJ). He objected to her nomination because she was in the federal prosecutor’s office that investigated Menendez and his brother in New Jersey. (Note: he has since lifted the hold) The other two holds are on nominees at the District Court level. Rosemary Marquez’ nomination is being held by John McCain and John Kyl in Arizona and Elissa Cadish is being held in Nevada by Dean Heller. Heller objects to the nomination based on a questionnaire answer by Cadish regarding gun control years ago. She has since stated that she would apply the la based on the current state of the law. The questionnaire was submitted before the Heller and McDonald decisions.

Previously, I have argued that regardless of who does the nominating, the system needs reform. To do so, one needs to distinguish between the role of a District Court judge and a Court of Appeals justice. The lower courts are triers of fact and bound by more rules and restraints than appeals courts. For example, they must adhere to the Rules of Civil Procedure, Sentencing Guidelines, and guidance from the appeals courts. They must apply the law based upon the facts of the case before it. conversely, appeals courts have greater latitude in that decide the larger issues of any case before it. They examine not only the procedural protections, but also other issues that may impinge on constitutional territory specific to the case. In other words, appeals courts have more influence than District Courts.

But first, one needs to ask whether there is a problem. If we compare the last three Presidents to this point in their first term, Obama nominee rate of confirmation is not that lower than that of Bush or Clinton. At the Circuit level, his rate of confirmation is actually greater than that of Bush by 3.4%. In the overall sense, the Obama rate of confirmation is not that far behind that of Bush or Clinton. Hence, the rate of confirmation is not as great as liberals would have you believe and certainly not outside the norms of Bush or Clinton. Of the current 32 nominees, 13 have been approved by an average vote of 16-2. One of those nominees was a name resubmitted by Obama that the Senate failed to confirm ONLY because they were nominated previously by Bush!!

However, for the future, there should be reform of the hold process. This courtesy unnecessarily holds up judicial nominations because of the objections of a single Senator, usually from the nominee’s home state. Republicans may object to reform now, but imagine a Chuck Schumer, Diane Feinstein or Dick Durbin holding up a Romney nominee should he win in 2012. In effect, there would be a 3-tiered hold process. This would retain the use of this process without allowing it to be an effective individual filibuster. Remember that the practice is one of Senatorial courtesy and rules that can be changed by the Senate itself exclusively. Regarding District Court nominations, there would be no holds on any nominee before a Senate Judiciary Committee hearing and vote on the nominee. However, should the nominee not receive overwhelming Committee endorsement, then a home-state Senator could place a hold. Using the example of Cadish in Nevada, Heller could not place a hold. However, nothing prevents him from expressing his reservations and objections to a member of the Judiciary Committee who can then direct their examination to those worries. If they vote to approve Cadish 15-3 or better, then Heller would be prohibited from placing a hold. However, if the vote is 14-4 or lower, then he would be permitted to place the hold and deny full Senate consideration of the nominee. However, a hold would only last for 90 days after which the Senator would have to reissue a hold.

For Circuit Court nominations, assuming the nominee is District Court judge elevation, a hold can be placed on the nominee by ANY Senator of any state within that Circuit. That is because Circuit Court judges have greater latitude in deciding cases. For example, lets assume Cadish is confirmed and the fears of conservatives is realized. She is later nominated to the 9th Circuit Court of Appeals. Not only could Heller place a hold on the nomination, but so could any Republican Senator from any state within that circuit.

Lets look at a worst case scenario. Obama nominates someone who is not a District Court judge for the 9th Circuit. Additionally, there are no Republican Senators from any state within that circuit. Lets assume this person is Goodwin Liu. Since no hold can be placed in this scenario, he receives a Committee hearing and is approved 10-8. Republicans can still block the nomination through the normal filibuster procedures and denying cloture before the full Senate. Hence, in this rare worst case scenario, there is still a check on the confirmation of radical nominees. In reality, since Idaho and red states are within the 9th Circuit, chances are a hold would be placed simply denying a Committee hearing in the first place. In needs to be noted that either party has no Senators in only one circuit- the Second- where there are all Democratic Senators.

In the third tier- the Supreme Court- given the transparency and importance of the process, holds should be reserved only for the most controversial nominees. I would also add the DC Circuit since they are a “heartbeat away” from the Supreme Court. Here, holds can be placed by the top two ranking members of the Judiciary Committee or the leadership of either party in the Senate. In exchange, there should be limits on the testimony of special interest groups regarding nominees and less reliance on ABA rankings (they are an increasingly liberal voice).

These reforms would retain the use of Senatorial holds while maintaining checks on the nomination and confirmation of judges perceived to be radical by either party. In reality, both parties have resorted to abuse of the current system. As stated earlier, this is a proposed solution in search of an overstated problem, but one that makes sense and one that can, in a rare case, receive bipartisan approval.

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