New York Times

December 14, 2010

Advise and Obstruct

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

Senate Republicans seek to pin blame for the abysmal pace of filling judicial vacancies on President Obama’s slowness in making nominations. And, no question, Mr. Obama’s laggard performance in this sphere is a contributing factor. Currently, there are 50 circuit and district court vacancies for which Obama has made no nomination. But that hardly explains away the Republicans’ pattern of delay over the past two years on existing nominees, or the fact that Senate Republicans have consented to a vote on only a single judicial nomination since Congress returned from its August recess.

At this point, the Senate has approved 41 — barely half — of President Obama’s federal and district court nominees reported by the Judiciary Committee. Compare that with the first two years of the George W. Bush administration when the Senate approved all 100 of the judicial nominations approved by the committee. The final days of the lame-duck session are a chance to significantly improve on this dismal record and to lift the judicial confirmation process out of the partisan muck.

Of the 38 well-qualified judicial nominees awaiting action by the full Senate, nearly all cleared the Judiciary Committee either unanimously or with just one or two dissenting votes. Some nominees have been waiting for Senate action for nearly a year. Senator Mitch McConnell, the minority leader, should allow confirmation of all 34 nominees considered noncontroversial, including the 15 nominees cleared by the committee since the November election.

There are four other nominees who were approved by the committee over party-line Republican opposition. They, too, deserve a prompt vote rather than requiring President Obama to start the process over again by renominating them when the next Congress begins. That short list of controversial nominees includes Goodwin Liu, an exceptionally well-qualified law professor and legal scholar who would be the only Asian-American serving as an active judge on the United States Court of Appeals for the Ninth Circuit. His potential to fill a future Supreme Court vacancy seems to be the main thing fueling Republican opposition to his nomination.

Mr. McConnell is said to be negotiating a deal with Senator Harry Reid, the majority leader, that allows for confirmation of 19 nominees approved by the committee before the election but denies consideration by the full Senate to the others. That would be a disservice to the judicial system, to Mr. Obama’s nominees and to the idea that bipartisanship should exist, at last, in the advise-and-consent process for federal judges.