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No More Games:

The Washington Post says enough is enough:

It is time to stop playing games with judicial nominees. As senators cross swords and point fingers, seats remain empty, sitting judges get swamped, and cases drag on. Those who pay the highest price are the plaintiffs, defendants, crime victims and businesses relying on the courts to resolve disputes and dispense justice.

President Bush deserves blame for not naming nominees sooner and for ignoring the advice of home-state senators. But that does not relieve senators of their duty to evaluate those who have been nominated. The Senate last week confirmed one Court of Appeals nominee and four U.S. District Court nominees; that should be only the beginning. In the past two years, the Senate has confirmed seven nominees to the Court of Appeals; 16 such nominees were confirmed during President Bill Clinton's final two years in office. It appears unlikely that Democratic senators will match that number, but they should at least give every current nominee an up-or-down vote and expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit, where five of the court's 15 seats are vacant. Many in the current batch of national nominees no doubt warrant confirmation; we single out two particularly worthy ones.

The nominees the Post considers to be "particularly worthy" of confirmation are Peter Keisler and Rod Rosenstein, a sentiment shared by more than one contributor to the VC.

Related Posts (on one page):

  1. No More Games:
  2. The Case for Keisler:
loki13 (mail):
The problem is that this has become a political game.

When the President is stubborn and refuses to compromise, we get gridlock.

And, as the Post has pointed out, there are real consequences. It is important to note, however, that if the President worked with Congress, he would get conservative judges- just not the super-conservatives that he is demanding. Which, I believe, is how the process is supposed to work.
4.15.2008 9:18am
Joshua:
WaPo: It is time to stop playing games with judicial nominees. As senators cross swords and point fingers, seats remain empty, sitting judges get swamped, and cases drag on. Those who pay the highest price are the plaintiffs, defendants, crime victims and businesses relying on the courts to resolve disputes and dispense justice.

While I certainly appreciate the sentiment, isn't this kind of like castigating the scorpion for stinging the frog?
4.15.2008 9:19am
PersonFromPorlock:
If the administration were to say that silence - say, six months' worth - gives consent, we could probably get a year's entertainment out of the resulting tsimmis. And maybe even some reform of the process.
4.15.2008 9:19am
cboldt (mail):
But that does not relieve senators of their duty to evaluate those who have been nominated. ... [the Senate] should at least give every current nominee an up-or-down vote


.

What a convenient time to ratchet up the criticism, about coincident with the confirmation process slowing and stopping, in anticipation of a change of party in power in the WH.

.

And what of the point of view that not voting on a nominee is equivalent to discharging the A&C duty? That's a point of view that I expressly reject - but raise it in notice of the WaPo also finding an absence of vote to be an absence of decision.
4.15.2008 9:24am
cboldt (mail):
-- When the President is stubborn and refuses to compromise, we get gridlock. --

.

So too, gridlock when the Senate renders complaints instead of votes.
4.15.2008 9:29am
taney71:

The problem is that this has become a political game.

Its always been a political game. That is the nature of the process. The real issue is that instead of senators only caring about their own home-state nominees now a days Democrats look at the entire judiciary and block nominees regardless of state. So no longer does a nominee get a pass because Senator X of Utah is happy with him.

The traditional view of why the appointment process has degraded seems to hold Bork (and a few lower court nominees ... Sessions, Kozinski, Manion for example) to Clinton's lower court nominees - to Bush II's lower court nominees.
4.15.2008 9:47am
Lonetown (mail):
Bush needed to nominate people sooner?

That sounds like complete BS.
4.15.2008 9:52am
JR Randolph:
I've always been intrigued by a proposal from Judge Robertson (US district judge for DC): eliminate the two-tier district/appellate structure and just have one category of "Art. III judges" (WaPo, 5/27/03, p. A19).

After five years on a district trial bench, they become eligible for appellate work, but never exclusively. As such, they float back and forth between the two worlds. This, Robertson suggests, eliminates the high-profile, partisan nature of appellate confirmations.

On the flip side, maybe this raises the stakes for all federal confermations, thus resulting in more gridlock?
4.15.2008 10:20am
Tom952 (mail):
A change in the rules to limit the time to vote could de-politicize the process somewhat. If the senate doesn't vote down a qualified candidate within a specified time limit, the candidate is confirmed by default. Unfortunately, I believe this would require a constitutional amendment to implement, a difficult process.
4.15.2008 10:54am
Oren:
So the Democrats go ahead and confirm several judges, Bradbury is still not withdrawn, and yet I imagine it's still exclusively the Senate's fault.
4.15.2008 10:56am
pireader:
The procedural obstacles to confirming federal judges are there precisely to force consensus nominees. That worked for the Democrats over the past few years. If the Democrats win the presidency and a majority of the Senate this fall, it will work for the Republicans.

Why on earth would conservatives call for expedited confirmation of a President's judicial appointments? And for squelching a minority of the Senate's objections to a nominee? You're just making life easier for a President Obama or Clinton, and for Harry Reid, in 2009-2012.
4.15.2008 11:22am
Dave N (mail):
Oren,

Here's a suggestion, if Steven Bradbury is so far outside the judicial mainstream, have a vote. Then his nomination could be formally rejected. That's pretty simple, isn't it? Last time I looked there were 50 Democrats (51 if you count Joe Lieberman)--so if he is so patently awful there should be 51 votes against him.

Oh there aren't? Then maybe he is not as extreme as you make him to be.
4.15.2008 11:24am
DJR:
Yawn. Predicted future WaPo editorials:

It's time to stop playing games with earmarks. Our congressmen should put each of their pet projects to an up or down vote.

It's time to stop playing games with the war. Republicans should stop accusing Democrats of not being patriotic and Democrats should stop accusing the administration of being incompetent. We need an up or down vote on whether to continue the war.

It's time to stop playing games with laws. Congress should end the practice of allowing amendments and riders that have nothing to do with the subject of a bill at issue. Congress should propose laws that say what they mean and mean what they say, and have an up or down vote on each law's merits.

Etc. etc. etc.
4.15.2008 11:35am
rarango (mail):
Lord--didnt we just have this thread a few weeks ago which, as usual, degenenerated into a partisan, "they did it first session." There will be no compromises by any one; a new president will take office in January, and then, just maybe, some progress might be made--but I doubt it. And in January we can revisit the "they started it" routine.

David Berstein: quick--post something to get our minds off of this!
4.15.2008 11:37am
PLR:
The Senate has sent the Keisler nomination back to the White House twice. That's not an up-or-down vote, but it's not inaction either.

But if the Senate wants to vote down the nominees, I'm fine with that.
4.15.2008 12:21pm
cboldt (mail):
-- The Senate has sent the Keisler nomination back to the White House twice. --

.

Yup. And he was renominated both times. Randy Smith was sent back THREE times, and was eventually confirmed. I built a summary for myself back in the 109th Congress, in the midst of the cloture wars that preceded the odious Gang-of-14 "Senate is Supreme" agreement, and have maintained the effort so far through the 110th Congress. With the pace of action being what it is, maintenance isn't time consuming at all.

.

Summary of Circuit Court Nominations in the 110th Congress
4.15.2008 1:03pm
cboldt (mail):
Oren: yet I imagine it's still exclusively the Senate's fault.

.

Depending on what the "it's" consists of, yes. Absence of Senate votes is an issue solely under the control of the Senate.

.

But IIRC, you think absence of vote represents a decision (i.e., it represents the absence of advice and consent, and therefore no confirmation, and therefore is equivalent to an up or down vote that concludes "down"). So, to be consistent, just reject any criticism that calls for Senate votes on nominees. Voila, the complaint in the editorial, under that view, is illegitimate.
4.15.2008 1:17pm
cboldt (mail):
-- Why on earth would conservatives call for expedited confirmation of a President's judicial appointments? And for squelching a minority of the Senate's objections to a nominee? --

.

I'm not sure if I qualify for the label "conservative" (but I'm certainly not a "liberal" or "progressive"), and have a point of view on that questions.

.

As for "expedited" review and vote, I'm against a Senator voting on a nominee that they don't have a reasoned basis for decision. The decision of any individual senator should be based on sufficient evidence that the senator is willing and able to answer for his/her vote.

.

As for preventing a minority of the Senate to regulate the conducting of up or down votes on nominees, I see the use of cloture as a gatekeeper as an abuse of parliamentary process. Cloture is supposed to be used to force sufficient time for all the voting body to become informed, rather than as a de facto supermajority hurdle for agreement. If the Senate wants to do that in the context of legislation, fine (not that it isn't cloture abuse), but when a minority of Senators regulates what constitutes acceptable nominees, then a minority of senators has a stronger hand of influence in the president's nomination choices. It upsets a balance of power as between a minority of the Senate and the Executive.

.

I don't like the outcome of the rules when liberals are in power, but that's the way it goes.

.

Finally, I'm perfectly willing to advocate hypocritical tit-for-tat retaliatory action against a Democrat president. Goes around, comes around. The Democrats want a minority of Senators to choose? Okay. If they use it (and they have, and they advocate it), then them's the new rules, right or wrong. Just like street fighting isn't like the boxing ring. Kick 'em in the balls -- there is nothing "unfair" about it.
4.15.2008 1:30pm
q:

It is important to note, however, that if the President worked with Congress, he would get conservative judges- just not the super-conservatives that he is demanding. Which, I believe, is how the process is supposed to work.

I believe the process is supposed to confirm nominees if the majority of the Senate agrees, and the Constituion would seem to agree with me. In which case, the President doesn't need to work with Congress, since his nominee is acceptable. If he is demanding "super-conservative" judges, then presumably a majority of the Senate will not confirm him/her.
4.15.2008 3:00pm
DJR:

I believe the process is supposed to confirm nominees if the majority of the Senate agrees, and the Constituion would seem to agree with me. In which case, the President doesn't need to work with Congress, since his nominee is acceptable.


So where is up or down vote guaranteed in the Constitution? The only thing that matters is that the Senate has not given its consent, and the President refuses their advice. The President doesn't need to work with Congress, true, but if he wants to get judges confirmed he might want to consider it.


If he is demanding "super-conservative" judges, then presumably a majority of the Senate will not confirm him/her.


And they haven't so what's your beef?
4.15.2008 3:17pm
Gaius Marius:
It is time to eliminate the U.S. Senate from the Constitution.
4.15.2008 10:40pm
Oren:
It is time to eliminate the U.S. Senate from the Constitution.
Can't be done, see our previous discussion.
4.16.2008 1:29am
fouse, gary c, (mail) (www):
One of the issues that has been overlooked in this election is the issue of judicial appointments. It should become bigger in the general election when the voters will see the difference between what John McCain would appoint to the bench vs what Clinton or Obama would. Many conservatives are displeased and disappointed that McCain is the Republican nominee. I believe-but I am not convinced beyond a shadow of a doubt-that he would appoint conservative, constructionist judges. I know that Obama or Clinton would appoint liberal, activist judges.

As a yardstick, all we have to do is look at the last two Democratic presidents, Carter and Clinton. They routinely appointed liberal judges to the federal bench. Fortunately, Carter wasn't able to appoint any Supreme Court justices. However, as a DEA agent, I saw first-hand how Carter-appointed federal judges gave slap-on-the-wrist sentences to convicted drug traffickers. Clinton appointed similar judges to the federal bench and put the two arguably most liberal judges, Stephen Breyer and Ruth Bader Ginsberg on the Supreme Court. (True, Republicans have also goofed on Supreme Court appointments; George HW Bush put David Souter on the Court. Eisenhower appointed Earl Warren as Chief Justice, an appointment he later called his greatest mistake.)

George W Bush, notwithstanding the Harriet Miers fiasco, has made two good choices in Sam Alito and John Roberts for the Supreme Court. He has also done well with other appointments to the federal bench though Democrats have fought him every step of the way. Both sides realize how important judgeships are. They outlast the president's term by decades.

In general terms, it can assumed that Democrats will appoint liberal, activist judges to the courts who will make their own law according to their personal philosophy. Republicans, generally, will appoint conservative judges, who will be tougher on crime. There are exceptions, to be sure, but that is a general assumption.

This is another huge reason why conservatives must reconsider their opposition to McCain. When it comes to judicial appointees, we can at least hope that he will not "reach across the aisle". With Obama or Clinton, there is no doubt of what they will do.

gary fouse
fousesquawk
4.16.2008 3:16am
Oren:
In general terms, it can assumed that Democrats will appoint liberal, activist judges to the courts who will make their own law according to their personal philosophy. Republicans, generally, will appoint conservative judges, who will be tougher on crime.
When a judge agrees with me, it's constructionist. When a judge disagrees with me, it's activist.

Thanks for adding a lot to the discussion.
4.16.2008 4:05pm