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Let's Make a Deal: The Judicial Nominations Battle Is Not Over

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Earlier this week, the United States Senate was tied up in a contentious, but long overdue, legislative showdown over President Obama's judicial nominees. We witnessed the almost unbelievable spectacle of a Republican filibuster of 17 district court nominees, almost all of whom are utterly uncontroversial. Filibusters against district court nominees are virtually unheard of, and none has ever succeeded, but until yesterday afternoon the prospect of the total collapse of this Senate tradition was very real.

It was clear that this week's legislative theater of the absurd was merely an act of revenge and political gamesmanship directed against the president. It's the sort of childish petulance better suited to a middle-school student council than to the so-called World's Greatest Deliberative Body.

At the last minute, though, after a tidal wave of national disgust directed at Republican tactics, a deal was cut to allow some nominations to go forward. Twelve district court and two circuit court nominees have been promised votes before May 7. We are cautiously hopeful that the deal will hold. For those 14 men and women and for the 14 courts that finally get a judge, the news is good. It's a small, but important, step forward.

At the same time that we acknowledge the constructive side of the deal, it's important to remember that when the deal was struck, there were actually 22 nominees on the Senate floor awaiting a final vote, which means eight have been left behind with fundamentally the same characteristics as the ones moving forward: well qualified, stuck without a vote for long periods, some from seats labeled judicial emergencies, and certain to win confirmation if they were given the vote to which they are entitled. Worse still, this partial deal may end up serving as an invitation to further delays.

Why our misgivings? We know that virtually from the day President Obama took office, Republicans have been engaged in relentless obstruction of his judicial nominees at a level unprecedented in our history. One example: the 17 district court nominees at issue this week have been awaiting a final vote for a cumulative total of 3,628 days -- the equivalent of 10 years! -- from the time they were proposed by the president until today. No reasonable observer can expect the pattern of slow-walking nominations to change, regardless of this week's agreement, especially with an election looming.

It's extremely important going forward that this deal is not seen by anyone as the end of the road, but only the first step. By the end of their first terms, President George W. Bush had 204 judges confirmed, and President Bill Clinton had 201. Two hundred judges should be the goal for President Obama as well, who currently stands at 129.

If the 14 named in the current deal are confirmed by early May, the president must nominate and the Senate must confirm 71 new judges by the end of the year to reach a position of equity with his predecessors. Obviously, in an election year the process slows down the closer we get to November, so the clock is ticking -- loudly and urgently. Republicans will do everything in their power to keep as many judgeships open for the next president, whom they hope will be one of their own. That, after all, has always been the whole point of this obstructionist exercise.

This week's agreement, which deals only with a fraction of those in the nominations pipeline, must not be allowed to be perceived as the best that can be done by the Democrats or serve as an excuse for Republicans to claim that they are now suddenly the party of good governance and bipartisan cooperation.

Public pressure for action must accelerate, not be lulled into sleep by talk of deal-making. The reality is that the nation's courts are in crisis, with 102 current or expected district and circuit court judgeships empty. More than 160 million Americans -- half the country - live somewhere where there is a judicial vacancy.

The simple fact is that too few judges results in too little justice. Cases take years to reach a conclusion, if they are heard at all. Lives and livelihoods are disrupted awaiting judgments. Business disputes languish; individuals and families seeking recompense are left without recourse. What for Republicans is just another opportunity for partisan warfare has wreaked collateral damage on our judicial system and the American people. This has to stop.

This week's agreement is a baby step forward, but no one should become complacent -- it's 14 down, 71 to go.

UPDATE: The Senate this afternoon confirmed two of the 14 judges set out in the deal. Gina Groh (WV) was confirmed 95-2 and Michael Fitzgerald (CA) was confirmed 91-6.

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