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How the Judicial Confirmation Crisis Threatens Our Constitution

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The Senate voted Monday to confirm Jane Branstetter Stranch to the U.S. Court of Appeals for the Sixth Circuit, at long last filling a seat on one of our nation's most important courts that had been vacant for two-and-a-half years. This inexcusable delay in Stranch's confirmation highlights a growing problem that undermines the very spirit of the U.S. Constitution, whose 223rd anniversary we celebrate this week.

What makes the holdup of this nomination particularly distressing is that Stranch is exceedingly qualified for the job and had bipartisan support from the time of her nomination more than a year ago. Unfortunately, this kind of unwarranted delay has become all too common, and the vacancies it is perpetuating threaten to cripple our system of justice.

Ours is the oldest written constitution in the world and the foundation of our legal system, reflecting the fundamental values of liberty, equality and democracy. As Justice John Marshall wrote in the landmark 1819 case McCulloch v. Maryland, "We must never forget that it is a constitution we are expounding ... intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." The large number of vacancies on our federal bench impedes this necessary adaptation and threatens the vitality of our founding document.

There are currently 104 vacancies out of the 876 seats on the federal bench. Of those, 49 are deemed by the Administrative Office of the U.S. Courts to be so debilitating that they are considered judicial emergencies. A high-ranking Department of Justice official predicted that if the current rate of replacing judges continues, nearly half of the 876 judgeships could be vacant by the end of the decade.

Unfortunately this crisis is one of partisanship, rather than principle. Even as many of these judicial nominees have been voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans, a small minority in the Senate have chosen to delay their consideration, through the use of arcane and regressive procedural devices such as secret holds and the filibuster. This new approach is unprecedented. Consider, by comparison, the way in which the nominations of the previous president, who faced a Senate controlled by the opposing party, were handled. According to a recent analysis, President George W. Bush's nominees waited an average of 16 days for confirmation following approval by the Senate Judiciary Committee. As of July, the average wait for President Barack Obama's nominees was 82 days.

The problem has become so severe that judges themselves are warning of the consequences. Recently, six well-respected former federal judges wrote to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell, asking the Senate to "establish an improved process for the consideration of judicial nominations by the United States Senate." The current standoff, they wrote, "is untenable for a country that believes in rule of law."

Supreme Court Justice Anthony M. Kennedy also criticized the judicial confirmations process during remarks last month, saying, "It's important for the public to understand that the excellence of the federal judiciary is at risk. If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

The direct impact is that justice comes too late or not at all for ordinary Americans whose safety, freedom or livelihoods rest upon the outcome of a court action.

The Senate minority leader, who consistently has blocked highly qualified nominees, including Stranch, once believed in a more principled approach. While working as a Senate staffer, Sen. McConnell wrote in a law review article, "the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being." But, recently, acknowledging his about-face, he conceded, "The process has become more political."

It's time to reject this childish blame game. Both parties in the Senate must work together to confirm judicial nominees. For the sake of our system of justice, the nation's courtrooms must not be held hostage by petty partisan bickering.