Once again the Senate has been refusing to vote up or down on many of the President’s judicial nominees. President Bush had to deal with this problem; now it is President Obama’s problem. Given the large number of unfilled judicial seats, it is our problem as well.
It is November and Senators of both parties have kicked the can so far down the road that they are in the lame duck session. It’s the last five minutes of the last quarter of the game and they still don’t know what to do.
Senator John Cornyn (R-TX) made his views known back in 2004 in a law review article, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 Harvard Journal of Law and Public Policy 181 (2004). His article is one of the best descriptions I have read on what is wrong with our system for confirming judges. It still is.
Senator Cornyn begins with a quote from one of his most well known predecessors in the Senate:
To vote without debating is perilous, but to debate and never vote is imbecile.
—Senator Henry Cabot Lodge
In his conclusion Senator Cornyn drives home his point:
“Instead of fixing the problem [with the judicial confirmation process], we nurse old grudges, debate mind-numbing statistics, and argue about who hurt whom first, the most, and when. It is time to end the blame game, fix the problem, and move on. Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. Unnecessary delay has for too long plagued the Senate’s judicial confirmation process. And filibusters are by far the most virulent form of delay imaginable.”
The article is available on the Committee for Justice web site. See:
This situation is admittedly confusing because a group also calling itself the Committee for Justice has now six years later urged Senator Reid not to proceed with confirming judicial nominees:
I am trying to figure out if these two groups are one and the same, but it does not sound like it. The first Committee for Justice apparently embraced Senator Cornyn’s call for a bipartisan end to delay in the confirmation process regardless of who is President. The second Committee for Justice is now urging yet more delay.
In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.
Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.
This does not mean the Senators should vote "yes". They can vote "no". But they should vote.