Severino: Blame Over Judicial Nomination Misdirected

Posted April 8, 2010 at 4:11pm

Professor Carl Tobias wrote recently in Roll Call describing the “serious problem” of vacancies on the U.S. Court of Appeals for the Fourth Circuit. He correctly notes that the court has been down 25 percent of its seats for the past two and a half years, “undermin[ing] the court’s ability to deliver justice.” But he fails to explain why the vacancies are there: the Senate’s refusal to confirm, not President Barack Obama’s, but President George W. Bush’s nominees.

[IMGCAP(1)]As Tobias correctly observes, Obama inherited four vacancies on the Fourth Circuit. If they were still vacant when Bush left office, it wasn’t for lack of effort to fill them. One seat had been vacant since a judge’s death in 2000, but the Democratic Senate refused to move on the nomination of U.S. Attorney Rod Rosenstein to fill it. Rosenstein’s own success was perversely twisted into a reason to block his nomination: Maryland’s two Democratic Senators excused their roles in the affair by saying Rosenstein was doing too good a job as U.S. attorney in Maryland to let him go.

Another two seats opened up in 2007, but the Democrats obstructed Bush’s nominees yet again. They refused to move U.S. District Judge Glen Conrad to one seat, even though Conrad had the affirmative support of both his Senators, Republican John Warner (hardly an arch-conservative) and Democrat Jim Webb.

Democrats even refused to move U.S. District Judge Robert Conrad to a seat vacant since 1994, despite the fact that he met all requirements of the “Leahy standard” for moving Bush judicial nominees: He had strong home-state support, was nominated to fill a judicial emergency and earned a unanimously well-qualified American Bar Association rating, the Democrats’ gold standard for judicial nominees. Indeed, as a federal prosecutor, he had even been praised by former Attorney General Janet Reno. Yet the Democrats never even gave him a hearing. Now, Tobias complains that a Democratic nominee for this seat is not being moved fast enough — even though Democrats control all aspects of the confirmation process in the Senate.

Could Tobias really have overlooked these facts? Hardly. He detailed them himself in a 2009 Arizona State Law Journal article analyzing the judicial confirmation process. But to read his latest piece, the Senate should simply abandon the bad blood that has been building up over the past 20 years and any delay only prolongs a judicial emergency. It is naïve to expect Senate Republicans to indiscriminately vote in every Obama appointment simply because we’re short on judges. That philosophy, like unilateral disarmament, may sound nice on paper, but only works in practice if the other side is uninterested in claiming its windfall.

In fact, Republicans are processing Obama’s judicial nominees faster — a lot faster — than Democrats processed Bush’s judicial nominees. Bush’s circuit court nominees waited an average of 350 days for confirmation, whereas Obama’s circuit court nominees are being confirmed about four and a half months faster, i.e., a little over 200 days. Similarly, Obama’s district court nominees are being confirmed, on average, a little over 100 days after being nominated. Bush’s district court nominees, on the other hand, waited an average of 180 days to be confirmed, nearly twice that long.

Tobias has it backward. By speeding up the movement of judicial confirmation, Republicans have already offered an olive branch to the president and contributed to de-escalation of the judicial confirmation battles. Will Obama do his part by nominating fewer extreme candidates? Those are also the nominees who tend to slow down the process. His rhetoric certainly has suggested otherwise: Rather than pledging to nominate judges who will fairly apply the law, he promised to appoint judges with “empathy” who would vote as members of their interest groups. If the president is willing to return to the traditional view of impartial judging that is overwhelmingly supported by the American people, he will have done a great deal to help remedy the politicization of judicial nominations in America, and Tobias will be able to stop worrying over judicial vacancies.

Carrie Severino is chief counsel and policy director with the Judicial Crisis Network.