Opinion

The Great Debate

Time for Senate compromise on judicial nominees

All eyes were on the Senate last week as Democrats and Republicans reached an agreement to move forward on confirming certain stalled executive branch nominees. This new spirit of compromise was heralded, but before we begin celebrating, it is worth noting that judges were not part of the deal.

Federal trial and appellate courts have alarmingly high vacancy rates, each hovering at 10 percent. In the D.C. Circuit, which is often the final word on everything from environmental regulations to consumer protection rules, three of 11 seats remain vacant. In the trial courts, which resolve the vast majority of federal cases, the average number of vacancies has stayed above 60 for five straight years — the only time that this has happened in more than two decades. Nationwide, there are currently 85 federal judgeships that need to be filled.

One key reason vacancy levels are so high is obstruction in the Senate. Senators have used the filibuster and other procedural mechanisms to slow down the confirmation of even noncontroversial nominees, who were usually confirmed, eventually, with overwhelming approval.

This obstruction is particularly striking in connection with the federal trial courts, which have historically avoided the partisan wrangling that has long characterized the confirmation of appellate judges. For example, during President Barack Obama’s first term, trial court nominees had longer average and median wait times from nomination to confirmation than nominees from any other recent administration, according to a study by the Congressional Research Service. Senators have also delayed in submitting trial judge recommendations to the White House, slowing down the entire nomination process.

The filibuster was used on trial court nominees to an unprecedented extent during Obama’s first term, according to research by Alliance for Justice, with Senate Majority Leader Harry Reid (D-Nev.) forced to file cloture 20 times. In contrast, Presidents Bill Clinton and George W. Bush each had cloture filed on a district court nominee only once during their entire presidencies.

Kagan failed the Kagan standard

Kagan

The following is a guest post by Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. The opinions expressed are his own.

If you followed Elena Kagan’s performance at her Supreme Court nomination hearing this week, you probably didn’t learn much that you didn’t already know. Yes she’s engaging, knows the law backward and forward, and can rattle off clever one-liners—Jews go to Chinese restaurants on Christmas!—but we still don’t know how she views the Constitution or what she thinks about various developments in constitutional jurisprudence.

In short, the hearings this week were plenty more interesting than Sonia Sotomayor’s cramped and wooden performance last year, but still we can only infer the nominee’s judicial philosophy from admission that she’s a “lifelong Democrat” with “largely progressive” views. Shocking!

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