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Judith E. Schaeffer Headshot

What's Good for One Lame Duck Ought to be Good for Another

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When the Senate returns to town next week for its post-election "lame duck" session, it will find 23 of President Obama's judicial nominees who had been voted favorably out of the Judiciary Committee exactly where the Senate left them in September -- still languishing on the Senate floor, waiting for an up or down confirmation vote. The vast majority of these nominees are uncontroversial; indeed, 17 of them were approved by the Judiciary Committee without opposition, and many have the support of their home state Republican Senators.

During prior administrations, these nominees would have moved quickly out of Committee to a vote on the Senate floor. But as has been well documented, President Obama's nominees have found their path to a confirmation vote stymied by Senate Republicans' unprecedented abuse of the Senate's procedural rules. As a result, the Senate to date has confirmed only 41 of President Obama's lower court nominees, a staggeringly low number; in fact, not since Richard Nixon have so few judicial nominees been confirmed by this point in a president's term.

Senators have a constitutional obligation to consider a president's judicial nominees, and it is imperative that Senators use the upcoming "lame duck" session to do just that. There is certainly good precedent for this. During the Senate's "lame duck" session in 2002, the Senate voted on and confirmed 20 of President George W. Bush's judicial nominees, including two highly controversial nominees to the Court of Appeals (Dennis Shedd and Michael McConnell). President Obama's nominees deserve no less consideration now.

With more than 100 vacancies on the federal courts, there will be serious consequences to the American justice system if Senate Republicans continue to deny up or down votes to these nominees (or to additional nominees, possibly as many as 16, who may be passed out of the Judiciary Committee before the end of this Congress). Nominations not voted on during this Congress will effectively expire, and the nominees would have to start the process from scratch all over again during the next Congress, which begins in January. First, President Obama would have to re-nominate them, and they would then have to be processed through the Judiciary Committee, despite having been favorably reported out by the Committee already. Even for the uncontroversial nominees, it could be many months into 2011 before they again reached the Senate floor.

This is not an academic problem. Many of the vacancies to which these highly qualified men and women have been nominated are on courts so overworked that the vacancies have been declared "judicial emergencies" by the federal judiciary. Kimberly Mueller, for example, a poster child for Republican obstructionism whom I've written about before, has been nominated to the Eastern District of California, a court whose judges are so burdened by growing caseloads that a sitting Supreme Court Justice, Anthony Kennedy, has spoken out about the need to confirm more judges. Mueller was reported out of the Judiciary Committee back in May without opposition, but has yet to receive an up or down vote on the Senate floor. Meanwhile, back in the Eastern District of California, cases wait to be heard.

The phrase "justice delayed, justice denied" is not just some catchy saying, but an expression of reality. For hardworking Americans who believe they have been victimized by corporate or other wrongdoing, the increasing inability to have their cases heard timely in our courts is tarnishing what should be a shining star of American government -- our federal judicial system.

The Senate has a chance to start fixing this problem. When the Senate returns next week, it should, as it did in 2002, make the lame duck a mighty duck for judicial nominees.

Cross-posted at Text & History