GUEST EDITORIAL

Judicial games

8/22/2011

Just before they left town for their August recess, senators confirmed four of President Obama's judicial nominees. The disappointing news is that they left 20 perfectly qualified nominees languishing on the floor without a vote.

Sixteen of the 20 had sailed through the Senate Judiciary Committee without a single no vote from either party. Nine were slotted to fill long-vacant seats that have been designated "judicial emergencies" by the Administrative Office of the U.S. Courts.

Eight have been waiting for at least three months for a floor vote. As if this was not perturbing enough, the seat-saving obstructionism that accompanies an election year and brings confirmations to a standstill now looms.

There are 88 federal court vacancies, and five judges have announced plans to retire. Mr. Obama was woefully slow in sending up nominations early in his term, nominating only 34 in 2009. But he has picked up the pace, with 71 nominations in 2010 and 50 this year.

Yet the Senate has confirmed just 35 Obama judicial nominees this year, with only three for the courts of appeals. The responsibility for lingering vacancies now lies primarily with Capitol Hill.

There was a time when battles over judicial nominees, especially those tapped for the federal courts of appeals, served as proxies for ideological principles. Liberals body-blocked confirmation of such young conservatives as Miguel Estrada, who they believed took too cramped a view of constitutional rights. Conservatives threw down the gauntlet over such young liberals as Goodwin Liu, who they feared would transform the bench into a legislative podium.

It was wrong, in our view, to deny either man confirmation -- and to deny the presidents who nominated them their choices. But at least these battles were about something real.

What excuse is there to hold up confirmation for non-controversial trial court nominees? Kathleen Williams, for example, had the support of her home-state senators -- Democrat Bill Nelson and Republican Marco Rubio -- and was designated to fill a judicial emergency vacancy on an overwhelmed court in the Southern District of Florida. Ms. Williams was one of the lucky four who finally earned confirmation this month from a unanimous Senate -- more than a year after Mr. Obama originally nominated her.

The gamesmanship is not only frustrating but also destructive. The lives of nominees and their families are put on hold. Cases grind to a halt and expenses for litigants soar, as even relatively simple matters take an inordinate amount of time to resolve. The legitimacy of the courts is undermined.

Stephen Zack, president of the American Bar Association, put it well in a recent letter that urged Senate leaders to move quickly to fill judicial vacancies that "create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions."