Sustained Outrage

Senate confirms four, but Diaz continues to wait

For the first time in over three months, the U.S. Senate confirmed four federal judges yesterday. The four confirmations — Catherine Eagles to serve on the District Court for the Middle District of North Carolina; Kimberly Mueller to serve on the District Court for the Eastern District of California; John Gibney to serve on the District Court for the Eastern District of Virginia; and James Bredar to serve on the District Court for the District of Maryland — represented the district court nominees who had passed unanimously out of committee with the longest wait for a vote.

“These confirmations are long overdue.  For months, these nominations have languished before the Senate, without explanation and for no reason. Today, we confirm them unanimously. These confirmations will help fill a few of the judicial vacancies around the country, which have reached historically high levels. I hope these are the first of many confirmations by the Senate before we adjourn,” said Judiciary Committee Chairman Patrick Leahy (D-Vt.).

Through his spokeswoman, Senate Majority Leader Harry Reid (D-Nev.) called the confirmations “just a start.”

Eagles and Dibney passed out of committee on May 6. They had a long wait. But Albert Diaz (pictured above), a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, passed unanimously out of committee on Jan. 28. He was nominated by President Obama over a year ago.

Including Diaz, there are still 34 nominees awaiting Senate votes, 19 of whom passed out of committee unanimously.

Earlier this week, the New York Times editorial board took the Senate Republicans to task for their relentless obstructionism.

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.

And writing for the Center for American Progress, Ian Millhiser made the connection between this week’s ruling by Judge Henry E. Hudson (a George W. Bush appointee in the Eastern District of Virginia) declaring part of Obama’s healthcare plan unconstitutional and the importance of successfully placing judges on the federal bench.

Senate conservatives have bent over backwards to prevent President Barack Obama from elevating newer, more moderate voices while the federal judiciary is practically bursting at the seams with right-wing ideologues. Obama’s judges have been confirmed at only half the rate of President Bush’s and one third that of President Bill Clinton’s at the same point in their presidencies.

Yet the right lacks one legitimate ideological objection to any of to the president’s nominees. Obama has not nominated a single person who rivals a Janice Rogers Brown or even a Chief Justice Roberts in their commitment to an out-of-the-mainstream ideology. Indeed, Obama has bent over so far to nominate broadly acceptable judges that only a handful of his nominees have received even token opposition. A massive 29 nominees cleared the Judiciary Committee without a single vote against them of the 38 currently awaiting a vote on the Senate floor.

Obama’s unprecedented willingness to accommodate his opponents’ concerns has been met with equally unprecedented obstructionism. The Senate has not confirmed a single judge for three full months, and various news reports suggest that only half of the nominees waiting for a floor vote will actually receive one. If this happens it will mean that more than a dozen completely noncontroversial nominees will waste months being renominated and rerun through the Senate hearing process.

These delays impose a terrible cost on the thousands of Americans waiting for justice in the federal courts. Today, the average civil litigant waits nearly two years for a full trial on the merits of their case, according to the Administrative Office of the U.S. Courts. This wait is only going to get worse as Senate obstructionism slowly hollows out the federal bench. Nearly half of the 876 federal judgeships will be vacant by the end of the decade if the current confirmation rate does not speed up, according to the Department of Justice’s Office of Legal Policy.

Hudson’s ruling is only one example of judicial decisions that have represented setbacks to the Obama administration, Millheiser noted.

A Reagan appointee to the federal bench suspended all federal funding for potentially lifesaving embryonic stem cell research earlier this year—although this decision is currently being stayed pending an appeal. A bevy of judges with significant financial ties to the oil industry also blocked the Obama administration’s moratorium on new deepwater drilling during the Gulf oil disaster. And the Supreme Court’s egregious Citizens United decision will make it nearly impossible for candidates with a record of taking on wealthy corporate interests to be elected to public office.

With some members of Congress now claiming that landmark accomplishments like Social Security, Medicare, and the federal ban on whites-only lunch counters violate the Constitution, it’s clear that everything progressives cherish could be on the chopping block if the right consolidates its control over the judiciary.

Simply put, it’s time for progressives to admit that the waters around us have grown. We ignore the judiciary at our own peril and at the peril of millions of Americans who depend on progressive legislation for their health and well-being. Reversing the right’s 30-year campaign against the Constitution and progressive laws won’t be easy, and it will not succeed overnight. But progressive senators can begin this long-overdue effort today by demanding a vote on each of President Obama’s stalled nominees—and by not letting a single senator go home until these votes take place.