It is never a surprise when games are played on Capitol Hill. But as fun as it is for the politicians to play the stalling game on judicial confirmations -- especially since everyone knows the name on the mailbox at 1600 Pennsylvania Avenue will change in less than a year -- it is excruciating for the American people, the courts and the would-be judges who, as a result, are being forced to play the waiting game. The Waiting Game and the Stalling Game

It is never a surprise when games are played on Capitol Hill. But as fun as it is for the politicians to play the stalling game on judicial confirmations -- especially since everyone knows the name on the mailbox at 1600 Pennsylvania Avenue will change in less than a year -- it is excruciating for the American people, the courts and the would-be judges who, as a result, are being forced to play the waiting game.

Until last week, the U.S. Senate had not confirmed a single federal judge since before last Christmas. Indeed, the Democrats -- who run both houses of Congress and who, for as long as anyone can remember, have continually cried wolf that the President is packing the courts -- have succeeded in essentially shutting down the judicial confirmation process for the last seven-plus years.

When American voters decided that the Democrats should be in the minority, the Democrats filibustered President George W. Bush’s judicial nominees to death. Remember Henry Saad? Or Charles Pickering? Or Miguel Estrada? And, when the Democrats regained the majority again, they simply decided never to put judicial nominees on the calendar –not anytime, not anywhere.

A few years ago, the Democrats had gotten so good at leaving the benches vacant that the federal appeals court that covers the states of Michigan, Ohio, Kentucky and Tennessee was staffed with only half as many judges as authorized by Congress. Since his first year in the Oval Office, President Bush has nominated 10 different would-be judges to seats on that court, known as the U.S. Court of Appeals for the Sixth Circuit, including eight to vacancies designated “judicial emergencies” by the Administrative Office of the U.S. Courts. And yet, just months away from the end of his presidency, two seats remain empty, with nominees who have waited nearly two years already, and who have not even received a hearing before the Senate Judiciary Committee.

In fact, the Democrats have been so good at playing their stalling game that another federal appeals court now finds itself with a third of its bench empty. That court is the U.S. Court of Appeals for the Fourth Circuit, which covers the states of Maryland, West Virginia, Virginia, North Carolina and South Carolina, and where most of the War on Terror prosecutions have been brought. More troubling still is the fact that three of those empty seats are “judicial emergencies,” and have remained vacant for a combined total of more than 8,500 days now, including one seat which hasn’t been occupied by a confirmed judge since the end of July in 1994, nearly a decade-and-a-half ago.

These are just a couple of examples, but, as noted by former Senate Judiciary Committee Chairmen Orrin Hatch and Arlen Specter, the numbers speak for themselves. As they explained from the floor of the Senate and in the Judiciary Committee, like President Bush 43, all three of the previous occupants of 1600 Pennsylvania Avenue had to work with an opposition Senate during their final two years in the White House. But for Presidents Reagan, Bush 41 and Clinton, despite the fact that their Senates were controlled by the opposing political party, they confirmed an average of 75 of the President’s district court nominees and 17 of the President’s appeals court nominees during the final two so-called “lame duck” years.

However, with nearly two-thirds of President Bush 43’s final two years in office already over, the numbers are much different for this President. The Democrat-controlled Senate has not even confirmed half as many judicial nominees as the average for Presidents Reagan, Clinton and Bush 41. Specifically, the Senate has confirmed only six appeals court judges and 31 district court judges, meaning that during the last eight months of this presidency and this Congress, the Senate will need to confirm another 11 appeal court judges and 44 district court judges just to hit the average. That’s quite a tall order when it took the threat of a complete work stoppage in the Senate before the Democrats even allowed the first up-or-down votes on any judicial nominee this year.

It’s commonplace for Americans to complain about having to wait, really for just about anything. Given the fact that the Democrats have been stalling on confirming judges for years, and that America and its courts have been waiting on justice as a result, it’s about time for the Senate not to wait any longer in taking up-or-down votes on all of the President’s judicial nominees.

April 17, 2008
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