06/06/2013 05:58 pm ET Updated Aug 06, 2013

Republicans Are Wrong About Judges

The federal courts are too slow. I've been practicing in them for 20 years. A major part of the problem is the proliferation of drug cases. Federal judges in all major urban areas have very crowded dockets. Since the Constitution requires criminal defendants get a "speedy" trial, civil cases often languish. Federal judges have to prioritize their workloads and often end up delegating too much judging to their law clerks.

Against this situation, the Senate Republicans are angry at the president for nominating three new judges to the D.C. Circuit Court of Appeals. The arguments being advanced are that this is politicizing that Court and the vacancies should just be left open. It's a terrible argument. Maybe that particular appellate court is not under-judged, but Congress created a certain number of judgeships on the Court, and the president wants to fill them. The Republican argument is that he should leave them unfilled and fill vacancies in other courts. They have not specified those other courts.

As long as Congress keeps passing new laws, there will be more and more lawsuits. We have a huge federal government, far bigger than what the Constitution calls for, and since we do, we need a big federal judiciary to handle the caseload it produces. If vacancies exist, the president needs to fill them all promptly. If Congress doesn't want them filled, then it needs to repeal some of the laws on the books and cut back the number of judgeships on the federal courts. Accusing the president of "politicizing" the judiciary by filling the vacancies may sound good on the news, but all presidents do it. Every new judge brings to the judiciary a political background of some sort, as well as a legal one. Judges don't always rule in accordance with their prior political views, because they want to be perceived as good judges. But it lurks in their outlook when it comes to many civil and some criminal cases.

Republicans who say they would rather have vacancies remain vacant are asking for crowded dockets and the loss of public confidence in the federal courts. The next time they are in power they will complain about their president's nominations not getting approved. So its time to have a neutral Senate rule on all judicial nominations. They need to get done quickly.