Time for Progressives to Fight for the Judiciary They Deserve

03/05/2009 05:12 am ET | Updated May 25, 2011

Change doesn't come easily to the U.S. Senate, and it's likely that President Obama's judicial picks will run into the same tired antics that continually plague the Senate confirmation process. Progressives need to be prepared to fight back against attempts to block qualified candidates for the judiciary. Two previous nominees in particular, Richard Paez and Enrique Moreno, show the perils of relying on fairness and reason alone to guide qualified nominees to confirmation.

President Clinton nominated Richard Paez in early 1996 to a seat on the Ninth Circuit Court of Appeals. Paez was the first Mexican American to sit on the U.S. District Court in Los Angeles, and had an exemplary academic and judicial track record. That didn't matter to Senate Republicans on the Judiciary Committee, who twice let Paez's nomination expire. Both times, President Clinton responded by re-nominating Paez. It took an astonishing 1,506 days before the Senate finally voted to confirm Judge Paez's nomination.

Enrique Moreno wasn't as fortunate. Born to a carpenter and seamstress from Mexico, Moreno attended Harvard Law School and practiced law in El Paso for 21 years. In 1999, President Clinton nominated him to a seat on the Fifth Circuit Court of Appeals that had been vacant for two years. Senate Republicans again refused to vote on Moreno's nomination, this time claiming that, despite 21 years of professional service and endorsements from the American Bar Association and several well-respected Texas law associations, Moreno "lacked experience." Enrique Moreno never even received a hearing, let alone a confirmation vote. The seat was left vacant, and as a result, President Bush was able to nominate Priscilla Owen, an arch-conservative, who was confirmed by the Senate in 2005.

What can we expect for President Obama's nominees? More of the same. Certain members of the Senate will cower behind procedural hurdles to try to stall votes on clearly qualified nominees. Arlen Specter (R-PA), the ranking member of the Senate Judiciary Committee, had previously declared that it would not be "realistic or fair" to hold confirmation hearings for Attorney General nominee Eric Holder before President Obama's inauguration. Pre-inaugural hearings are a Senate tradition that reflect the importance of Cabinet positions like the Attorney General, which is why in 2000, the Senate held similar hearings for President Bush's disastrous Attorney General nominee, John Ashcroft.

So how can we prepare? Progressives should stand ready to condemn the right wing when they inevitably embrace hypocrisy. Back in 2005, Senate Republicans were ready to sacrifice the right to filibuster, one of the Senate's most cherished distinguishing privileges, in order to help them elevate extremist ideologues to the bench. An "up or down" vote became the rallying cry; with voices on the right calling for a swift confirmation hearing and a vote from the full Senate. Any attempt to delay President Obama's nominees should be met first and foremost with a loud and clear denunciation of the right-wing's hypocrisy. Progressives must ensure that President Obama's nominees receive the same fair and balanced treatment demanded by Senate Republicans.

Let's face the facts. President Clinton tried to placate Senate Republicans by nominating moderates to judgeships. Progressives responded with ire, but the Senate responded by refusing to hold confirmation hearings. Senator James Inhofe (R-OK) vowed to oppose all Clinton nominees until the President left office. Even as Senate leaders warned that the large number of open judgeships constituted a crisis, between 1998 and 2000, the Judiciary Committee never held more than eleven confirmation hearings in a year. The few Clinton nominees who did earn hearings were twice as likely as those nominated by Presidents Reagan and H.W. Bush to be returned to the White House unconfirmed. By the end of his Administration, 63 Clinton nominees hadn't ever received a Senate confirmation hearing. In stark contrast, by nominating young partisans to the bench, the second President Bush has managed to leave a right-imprint that will last for years.

The last Democratic President did not focus on the judiciary as an agent of change, a mistake for which America is still paying. Republican-nominated judges hold clear majorities on ten of the nation's twelve Circuit Courts. President Bush has consistently appointed younger, partisan judges whose extremist philosophy will stain the judiciary for years. Progressives need to learn from the mistakes of the past, and be prepared to demand the judiciary they want and deserve from the Obama Administration.