Sustained Outrage

A silver lining on judicial confirmations?

Writing for Talking Points Memo, Brian Beutler thinks that Republicans taking control of the House could have a positive impact on President Obama’s nominees.

Beutler suggests that without much legislation coming out of the House to occupy the Senate’s time, Senate Majority Leader Harry Reid (D-Nev.) can schedule votes for pending candidates for federal judgeships and administration posts.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama’s judicial and executive branch nominees — particularly numerous non-controversial picks, who will have to be renominated next year.

That’s certainly what advocates would like to see.

“Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges,” Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. “All of Obama’s nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes.”

“If one or more Republican senators force cloture votes on consensus nominees, they will accurately be seen as mindlessly obstructionist,” Sugameli says. “If they do not, nominees will be confirmed quickly.”

However, scheduling and holding floor votes still takes time, and there don’t seem to be any indications that GOP senators will any more accommodating with a 47-seat minority than they were with a 41-seat minority. The TPM piece continues:

That’s not to say that scores of judicial vacancies will be filled immediately, or that President Obama will (finally) see his executive branch fully staffed. Democrats will have a much smaller majority of 53 Senators, and any single Republican will be able to force Democrats to round up 60 votes and spend nearly a week of floor time to get a nominee confirmed.

“I would remind you that actions have consequences and we’re going to have to deal with what the House sends us and, at the other end, it’s three days plus [per filibuster] and all the days add up,” says Reid spokesman Jim Manley.

But one of the biggest hurdles nominees faced this year was a thick legislative agenda: they were literally crowded out by the sheer volume of routine, emergency, and history-making legislation. Next year that won’t be an issue. And that has some advocates seeing a silver lining around the midterm election results.

Hmm. I may be a big fan of Monty Python, but I don’t think I’m ready to start singing along just yet, particularly given that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, just published this call for the restoration of bipartisanship and civility on Politico.com.

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Senate Judiciary Committee schedules hearings on nominees

This just in: the Senate Judiciary Committee announced today that 12 judicial nominees are on the agenda for the committee’s next business meeting on Nov. 18. It also scheduled a separate hearing for Nov. 17 that includes a panel of four judicial candidates who have not yet appeared before the committee.

Assuming the committee approves all 12 nominees on Thursday — and that’s a pretty big assumption — that would put the number of nominees for circuit courts awaiting full senate approval at 9 (for 20 vacancies) and for district courts at 25 (for 86 vacancies). Let’s not forget that 50 of those 106 vacancies have been declared judicial emergencies by the Administrative Office of the U.S. Courts.

Of course, there are no consent agreements on Friday’s Senate agenda, so no movement yet on actually confirming any of the pending nominees during the so-called lame-duck session before the 112th Congress takes office in January. The Alliance for Justice has urged the full Senate to take up the nominations that have passed out of the Judiciary Committee during the lame-duck session:

In addition to being desperately needed and largely uncontroversial, these nominees represent the hope of creating a federal judiciary that is representative of our nation’s demographic diversity. Thirteen of the pending nominees are people of color and 10 are women. Many would be historic “firsts” in their respective courts if confirmed to the bench.

Though these nominees have been awaiting votes for far too long, lame-duck sessions have frequently been an occasion when judicial nominees are approved. For instance, during the 2002 lame-duck session in a closely split Senate, President George W. Bush had 20 nominees confirmed, all but one on a voice vote, including controversial circuit court nominee Michael McConnell.

According to AFJ President Nan Aron, “These historic levels of obstruction have serious consequences for American courts. The Senate needs to put aside partisan rancor, perform the task the Constitution has assigned to it, and confirm these qualified, diverse judges to the federal bench. It would be an unforgiveable tragedy if obstructionism during the lame-duck Congress helped create a lame-duck judiciary.”

(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

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Why judicial nominees don’t get votes

With Congress in recess until after the Nov. 2 election, there won’t be any movement on confirming any federal judges for a while, unless President Obama considers recess appointments, which is probably fight he doesn’t want to pick. (Presumably, he has enough headaches already.)

But I wanted to point out two very informative pieces by Jack Betts of the Charlotte Observer, which provide a terrific window into the tactics being used to slow the pace of confirmations to a crawl, and the effect on the federal judiciary. The use of secret holds to block nominees has “crippled the administration of justice in courts across the land,” Betts wrote. “Political intransigence on one side or the other has delayed the consideration of badly needed judges for many years, in this state and elsewhere.”

The Oct. 2 column, titled “Senate’s Judicial Graveyard,” continues:

You can argue all evening over which party is worse about it or where it began, but the fact is that both the Democrats and the Republicans bear responsibility for the failure of the Senate even to act on some judgeships, let alone reject them. For years it kept North Carolinians off the 4th U.S. Circuit Court of Appeals, even though this state is the largest of the five states in the 4th Circuit. It’s an important court, handling something like 99 percent of the federal appeals that come from North Carolina, South Carolina, Virginia, Maryland and West Virginia. In 208 years, the state had had only seven judges on the court.

Political rivalries and petty payback kept N.C. judges off that court and out of N.C.’s federal courtrooms, too. But this time, it’s not only politics. It’s pigheadedness.

Let’s look at the 16-year-old history of this sorry episode: In 1994, 4th Circuit Judge Dickson Phillips went on senior status, and President Bill Clinton nominated U.S. District Court Judge Jim Beaty of Charlotte for the vacancy in 1995. But then-Sen. Jesse Helms, no doubt peeved because Democrats had blocked one of his nominees for a judgeship, sat on the Beaty nomination. The 4th Circuit court didn’t need any more judges, Helms said.

This back-and-forth prevailed for years. When Democrat John Edwards was elected to the Senate in 1998, he blocked Helms’ nominees, and Helms blocked Edwards’ nominees for judgeships. One encouraging note of bipartisanship came after Helms left the Senate, and Edwards and Republican Sen. Elizabeth Dole backed Allyson Duncan for the 4th Circuit and she was confirmed.

But when Republican Sen. Richard Burr joined Dole in the Senate, their nominees for the 4th Circuit – District Judges Terrence Boyle and Robert Conrad – were blocked. Boyle’s nomination was controversial, but both he and Conrad deserved a Senate vote one way or the other. They didn’t get it. That was the Democrats’ failure, a childish, obstinate refusal to vote on two experienced judges who are regarded as tough but fair jurists.

When Barack Obama became president, this much changed: The state’s two senators, incumbent Republican Burr and newly elected Democrat Kay Hagan, backed both of the president’s N.C. nominees for the 4th Circuit. They were N.C. Court of Appeals Judge Jim Wynn (who had been blocked by Helms when President Clinton nominated him in 1999) and N.C. Superior Court Judge Albert Diaz. Wynn, a Navy veteran, was approved by the Senate Judiciary Committee overwhelmingly. Diaz, a Marine Corps veteran who specializes in business cases, was unanimously approved.

But for months their nominations swung slowly in the wind. Democrats asked for unanimous consent in the Senate to move on the noncontroversial nominations. Republicans were disinclined to agree to that, suggesting that Democrats schedule a vote as part of the normal debate process, which takes a lot longer. That resistance was part of a slowdown on judicial consideration that Republicans in the Senate quietly imposed – perhaps in hopes of stalling Democratic nominations in case they win the Senate after the midterm elections Nov. 2.

In a follow-up post on his blog on Monday,  Betts answered a question that many, myself included, have wondered as many of the president’s nominees have languished on the Senate’s agenda without getting votes: Why don’t the Democrats use their substantial majority to push the nominees through? Why doesn’t Senate Majority Leader Harry Reid (D-Nev.) simply override the threat of a filibuster and schedule votes for nominees at his discretion?

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No judicial confirmations until after the election

In case you missed it, the 111th Congress adjourned this week to allow members to hit the campaign trail, meaning that there will be no movement on any of the 23 judicial nominees currently awaiting senate approval until after the Nov. 2 election.

In response, President Obama fired off a strongly-worded letter, expressing his disappointment that more of his nominees haven’t been confirmed. As he has previously, Obama specifically referred to Albert Diaz, a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit.

Politico.com and the New York Times’ political blog The Caucus both had items on the president’s missive.

Here’s the letter, via the New York Times:

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release September 30, 2010

TEXT OF A LETTER FROM THE PRESIDENT TO THE MAJORITY LEADER AND THE REPUBLICAN LEADER OF THE SENATE, AND THE CHAIRMAN AND RANKING MEMBER OF THE SENATE JUDICIARY COMMITTEE

September 30, 2010

The Honorable Harry Reid
Majority Leader
United States Senate
Washington, D.C. 20510

The Honorable Patrick J. Leahy
Chairman
Judiciary Committee
United States Senate
Washington, D.C. 20510

The Honorable Mitch McConnell
Republican Leader
United States Senate
Washington, D.C. 20510

The Honorable Jeff Sessions
Ranking Member
Judiciary Committee
United States Senate
Washington, D.C. 20510

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.

Sincerely, BARACK OBAMA

If the president’s polite concern sounds familiar, that’s because it is.

Here’s a thought: What if, during the five-week recess, the president nominated a flurry of candidates for the federal bench? This would accomplish two things. First, it would preempt Senate Republicans for blaming the lack of confirmations — which, as I and others have noted before, is creating a judicial vacancy crisis — on the president and the relative scarcity of his nominations.

But more importantly, it would send the message that President Obama cares about the federal judiciary, that it is a priority for his administration, and he is not going to let the Republicans thwart his nominees just by using obstructionism to run out the clock.

U.S. Attorney General Eric Holder published an op-ed in the Washington Post today, decrying the “confirmation crisis” that has seen the number of federal judicial vacancies double during President Obama’s time in office. “The federal judicial system that has been a rightful source of pride for the United States — the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law — is stressed to the breaking point,” Holder wrote. He noted that 259,000 civil cases and 75,000 criminal cases were filed in federal courts in 2009, enough to strain the court system even without almost one in eight judgeships sitting empty.

The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years — the slowest pace of confirmations in history — fully half the federal judiciary will be vacant by 2020.

As Justice Anthony Kennedy recently noted, the “rule of law is imperiled” if these important judicial vacancies remain unfilled. In 2005, Senate Republican leader Mitch McConnell called on Congress to return to the way the Senate operated for over 200 years, and give nominees who have majority support in the Senate an up-or-down floor vote.

I agree. It’s time to address the crisis in our courts. It’s time to confirm these judges.

Holder’s reference to Justice Kennedy came from an article in the Los Angeles Times about the increasingly politicized confirmation process, and how the battles over nominees has “spread like a virus” from the appeals courts to the district courts, according to one observer. Here’s the entire passage pertaining to Justice Kennedy:

Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.

“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

Holder’s piece also mentions Albert Diaz, the North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, who was nominated by Obama in November, passed (unanimously) out of committee in January, and, as I noted last week, now holds the dubious distinction of having the longest active wait for a confirmation vote.

In other confirmation news, over on Slate.com, Dahlia Lithwick and Carl Tobias, a law professor at the University of Richmond and a friend of Sustained Outrage, took “one last crack at scaring your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies” in their article “Vacant Stares: Why don’t Americans worry about how an understaffed federal bench is hazardous to their health?”

And the Alliance for Justice published a report yesterday that focused on judicial emergencies, noting that almost half (48) of the 103 current openings have been declared by the Administrative Office of the U.S. Courts. The 4th Circuit opening that Diaz has been nominated to is one of those emergencies, which means that West Virginia, as part of the 4th Circuit, is among the 30 states affected.

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On Wednesday, in remarks at the Congressional Hispanic Caucus Institute’s annual awards gala, President Obama brought up Albert Diaz, his last remaining nominee to the U.S. Court of Appeals for the 4th Circuit, citing the North Carolina judge as an example of how Republicans (specifically Senate Minority Leader Mitch McConnell, R-Ky.) have delayed confirmation votes for his nominees.

Here’s what the president said:

Right now, there are 21 judges who’ve been held up for months while their courts have sat empty.  Three of them are outstanding Latinos, like Judge Albert Diaz, who I nominated to the Fourth Circuit Court.  He’s been waiting for 10 months.  This is a widely respected state court judge, military judge, and Marine Corps attorney.  He was approved unanimously by the Judiciary Committee.  But just last month, the Senate Republican leader objected to a vote on his confirmation yet again.  And when he was asked why, he basically admitted it was simply partisan payback.  Partisan payback.

We can’t afford that kind of game-playing right now.  We need serious leaders for serious times.  That’s the kind of leadership this moment demands.  That is what we need right now.  Because when I get out of this town and I’m meeting with people, talking to folks, nobody is asking me, “Hey, Barack, which party is scoring more points?”  Nobody is saying, “Oh, don’t worry about us, I just want you to do what’s best for November.”

As I pointed out on Tuesday, some people are calling the current number of vacancies in the federal judiciary a crisis. Diaz, who was approved unanimously by the Senate Judiciary Committee on Jan. 28, has now been waiting longer than any other judicial nominee still pending.

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Does America care about the judicial vacancy crisis?

The Senate returned from its August recess yesterday, and spent part of the day discussing the nomination of Jane Branstetter Stranch, a Tennessee lawyer up for a seat on the Sixth Circuit Court of Appeals. When they took up a vote, Stranch was confirmed by a margin of 71-21. (West Virginia Sen. Carte Goodwin, who spoke on behalf of his late father in Charleston on Monday morning, hustled back to Washington in time to vote in favor of Stranch’s confirmation.)

Stranch passed out of the Judiciary Committee on Nov. 19, meaning that she had to wait almost 10 months before getting a vote. With her confirmation, the dubious distinction of the longest pending nomination passes to Albert Diaz, a North Carolina judge tapped for the 4th Circuit and approved by the Judiciary on Jan. 28. As I’ve noted before, Diaz went through the nomination and hearing process together with James A. Wynn Jr., another Tarheel nominated for the 4th Circuit. But in a somewhat inscrutable move, the Senate confirmed Wynn but not Diaz just before the August recess.

President Obama took office almost 20 months ago. In that time, 43 of his nominations to the federal bench (including two Associate Justices on the U.S. Supreme Court) have been confirmed by the senate. As this Judicial Selection Snapshot prepared by the Alliance for Justice points out, Obama’s two immediate predecessors met with considerably more success during their first 20 months in office. At the same point in their tenures, Bill Clinton and George W. Bush had nominated 123 and 122 judges respectively. At the end of August, Obama had secured 40 confirmations, compared with 83 by Clinton and 74 by Bush II.

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Senate confirms Wynn but not Diaz

Last night, after the Senate confirmed Elena Kagan to become an Associate Justice on the U.S. Supreme Court, it also approved four federal judges, including North Carolina Judge James A. Wynn Jr. to a seat on the U.S. Court of Appeals for the 4th Circuit.

Wynn’s confirmation means that 13 of the 15 seats on the 4th Circuit are now occupied, the highest number for the very busy appeals court in years. It also, the Greensboro News & Record rightly points out, gives North Carolina a much-deserved second judge on the court. North Carolina is the biggest state in the 4th Circuit’s jurisdiction (which also includes West Virginia, Maryland, South Carolina and Virginia), and has been under-represented since Judge James D. Phillips Jr. took senior status in 1994. In fact, Wynn will fill Phillips’ seat, which has been unoccupied for 16 years.

Yesterday’s confirmations, however, did not include North Carolina Judge Albert Diaz, who, like Wynn, was nominated for a seat on the 4th Circuit by President Obama on Nov. 4. Diaz and Wynn appeared on the same panel together before the Senate Judiciary Committee, and passed out of committee together on Jan. 28. Ironically, Wynn garnered one vote against him in committee, while Diaz was approved by a unanimous, 19-0 vote.

James Wynn and Albert Diaz are not a package deal, and their fates need not be tied together just because they have moved through the confirmation process at the same time. But it is hard to see the logic of confirming one and not the other without someone coming forward to raise a specific objection to Diaz’s qualifications.

Most likely, the lack of action on Diaz is meant to serve as a reminder from Republicans that they will continue to slow-walk President Obama’s nominees through the confirmation process. There are still 103 vacancies in the federal judiciary, and that number has hovered around 100 for months, even as nominees sit in the pipeline.

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Six months and counting for Diaz and Wynn

As of today, it has been exactly six months since the Senate Judiciary Committee approved the nominations of two North Carolina judges for seats on the U.S. Court of Appeals for the 4th Circuit. But the entire Senate has yet to take a vote on James A. Wynn and Albert Diaz, who mustered one single nay vote between them as they passed out of committee, thanks in part to anonymous holds.

Earlier this month, the Greensboro News & Record noted that after Sen. Kay Hagan, D-N.C., took to the Senate floor to lobby on behalf of her state’s nominees, Senate Minority Leader Mitch McConnell, R-Ky., spelled out why he refused to sign off on putting Wynn and Diaz to a vote. He was upset with President Obama’s recess appointment of Dr. Donald Berwick to the post of Administrator of the Centers for Medicare and Medicaid Services.

Democrats did not schedule so much as a committee hearing for Donald Berwick. The mere possibility of allowing the American people the opportunity to hear what he intends to do with their health care was reason enough for this administration to sneak him through without public scrutiny.

Given the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the request proposed by my friend from North Carolina. Therefore, Mr. President, I object.

Today, President Obama noted that he discussed confirming judicial nominees with McConnell during a meeting with Republican leaders.

[D]uring our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary.  Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve.  Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

If we want our judicial system to work — if we want to deliver justice in our courts — then we need judges on our benches. And I hope that in the coming months, we’ll be able to work together to ensure a timelier process in the Senate.

Now, we don’t have many days left before Congress is out for the year. And everyone understands that we’re less than 100 days from an election. It’s during this time that the noise and the chatter about who’s up in the polls and which party is ahead threatens to drown out just about everything else.

But the folks we serve — who sent us here to serve, they sent us here for a reason. They sent us here to listen to their voices. They sent us here to represent their interests — not our own. They sent us here to lead. And I hope that in the coming months, we’ll do everything in our power to live up to that responsibility.

A few months ago, I wrote that four months seemed to be the standard amount of time that appelate judges had to wait to get a vote in the Senate. Well, Diaz and Wynn have blown past that mark, thanks in part to the time and energy devoted to Elena Kagan’s nomination to the U.S. Supreme Court. But they’re not even the worst off: Jane Branstetter Stranch, a Tennessee judge up for a seat on the 6th Circuit, has been left in judicial limbo since Nov. 19.