Record-Low Judicial Confirmation Rate Highlights Need for Senate Rules Reform, Experts Say
FOR IMMEDIATE RELEASE:
December 22, 2010
CONTACT: Alex Wohl
(202) 393-6181
Record-Low Judicial Confirmation Rate Highlights Need for Senate Rules Reform, Experts Say
Washington, D.C. — After months of inaction on judicial nominations, the Senate provided a tepid response to mounting pressure to mitigate the vacancy crisis in the federal courts by confirming a small number of nominees during the final days of its lame-duck session, leaving almost 100 vacant seats unfilled. Legal experts point to the Senate rules as the primary obstacle to filling these vacancies, calling for immediate reform to a number of the Senate’s most arcane procedural devices.
“The record number of vacancies on the federal bench has a serious impact on the daily lives of Americans, delaying or denying justice,” said Caroline Fredrickson, executive director of the American Constitution Society. “We hope these recent confirmations signal an end to the ongoing effort by some members of the Senate to prevent judicial nominees from even receiving a vote.
“But the underlying problem — the present state of our Senate rules — is a key factor contributing to this record-high vacancy rate by enabling senators’ continuing obstruction through filibuster threats, anonymous holds and other means,” she added.
University of Minnesota law professor Richard Painter, who served as chief ethics lawyer for President George W. Bush, decried the Senate’s failure to take up-or-down votes on each nominee approved by the Senate Judiciary Committee.
“The only explanation for the delay is political gamesmanship,” Painter said. “Many Republicans, who in the past have been on record opposing the filibuster of judicial nominees, are now impeding the functioning not only of the Senate, but also of the federal bench, which is faced with a disturbingly high number of vacancies. This is not good for the Republican Party, for future Republican judicial nominees or for our Country.
“On principle, as urged by both President Bush and President Obama, nominees deserve an up or down vote,” Painter said. “This applies to so called ‘controversial’ nominees as well as to other nominees. Most of the nominees confirmed have gone through without any opposition from Republicans. If the judicial confirmation system were working, nominees such as Goodwin Liu, Edward Chen, Louis Butler and John McConnell would have, at a minimum, received a vote, and would likely have been easily confirmed. The system is obviously broken, and many of the same people who complained about it being broken in the past are now responsible for it still being that way. Republicans and Democrats must come together to fix it.”
Michael Gerhardt, a constitutional law professor at the University of North Carolina, also highlighted the problems with the Senate rules and obstruction of nominees.
“As Senator Leahy and several newspaper reports have indicated, President Obama’s judicial nominations, as well as nominees for key government positions, including Deputy Attorney General, have faced historic levels of opposition,” Gerhardt said. “The obstructions of these nominations impede the functioning of both the courts and the Justice Department. The American people deserve better from the confirmation process.”
With the start of a new Congress next month, ACS’s Fredrickson sees “an opportunity for a fresh understanding of the importance of our judicial branch of government.”
“A review of the Constitution will show that the filibuster is a Senate-created procedure, was never a part of the Framers’ plan and has no basis in the Constitution or American history. It is ripe for reconsideration,” Fredrickson added.
“The promise of a federal bench filled to capacity and allowed to function effectively is in the best interests of the nation,” she said. “We cannot continue to ignore this critical piece of our democracy.”
The American Constitution Society for Law and Policy (ACS) one of the nation’s leading progressive legal organizations, a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals founded in 2001. The views of speakers are their own and should not be attributed to ACS. For more information about the organization or to locate one of the more than 200 lawyer or law student chapters in 48 states, please visit www.acslaw.org.