- The Washington Times - Wednesday, November 25, 2015

The Republican-controlled Senate is confirming President Obama’s judicial nominees this year at a slower pace than Democrats did after taking the Senate majority in 2007 under President George W. Bush, prompting court watchers to warn that politics is skewing the process.

Two years after Democrats detonated the “nuclear option” to change the filibuster rules to speed judges through confirmation, they are facing the other side of the coin: Republicans in charge who are flexing their powers to slow down the process.

Senators last week approved LaShann M. DeArcy Hall to a judgeship in New York, just the 10th judicial nominee approved this year. By the same point in 2007, the Democrat-led chamber had confirmed 36 of Mr. Bush’s judicial picks.

“Justice delayed is justice denied,” said Carl Tobias, a law professor at the University of Richmond who has tracked the confirmations and worries that the slow pace is gumming up the courts. “It means that people and corporations have to wait longer to have their cases resolved, especially on the civil side.”

Fifteen other judges have been approved by the Judiciary Committee but still need votes in the full Senate for lifetime appointments to the federal courts. Five other nominees are waiting for confirmation to legislative courts that operate in U.S. territories, military tribunals or tax courts.

Sen. Patrick J. Leahy of Vermont, the leading Democrat on the Judiciary Committee, accused Republicans of slow-walking the nominees in a bout of “pure politics.”

“The great advantage of our federal judicial system is it’s always been kept out of politics,” he said.

Allowing it to seep in now, he said, would “create dangers for a generation to come.”

Republicans say the politicking started with Mr. Leahy and Sen. Harry Reid, the Democrats’ floor leader, who enraged Republicans in November 2013 when he rewrote Senate rules and deployed the “nuclear option,” allowing to him push Mr. Obama’s nominees through the Senate on a majority basis and bypassing the traditional 60-vote threshold for overcoming filibusters.

Mr. Reid argued that he had no choice because of Republican filibusters to a few of Mr. Obama’s nominations.

His gambit appears to have paid off, at least in terms of raw numbers. The circuit court level, where most big decisions are made, had 59 vacancies at the beginning of 2013. By the end of last year, when Democrats lost control, Mr. Reid had whittled down that number to seven vacancies.

This year, the biggest problem has been the district courts, where vacancies have gone from 33 in January to 53 as of the beginning of November.

Russell Wheeler, a visiting fellow at the Brookings Institution who studies the courts, said the number of vacancies is the important figure to track, particularly in courts that are struggling to keep up with their caseloads, and that much of the work at the district court level is not ideological.

“It’s just good business to fulfill the administrative duty of filling vacancies,” he said. “Any responsible senator wants to get vacancies filled.”

Republicans say Democrats are making too much of the situation and that their complaints ring hollow given how they treated Mr. Bush’s picks — including using the filibuster, for the first time, to block circuit court nominees.

Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, says the Senate has been more than fair to Mr. Obama compared with the Bush years. As of Oct. 5, the Senate had confirmed 314 of Mr. Obama’s judicial nominations, compared with 291 of President George W. Bush’s picks at the same juncture in 2007, he said.

He also said Democrats tilted the year’s numbers by ramming through 11 judges in the lame-duck session at the end of last year.

“Had we been able to consider those nominees this year under regular order, the Senate would have confirmed more judges this year,” he said in an October floor speech.

Including those 11 would bring this year’s total to 21, which is still short of the 36 mark in 2007, though adding the 15 nominees in line for votes would put the Senate on par with the Democrat-led chamber of 2007.

“There’s 15 on the calendar, and I don’t have any control over the calendar,” Mr. Grassley said in a brief hallway interview at the Capitol. “McConnell’s got control over the calendar.”

“We have regular votes on judicial (and other) nominees. When the next one is scheduled, it will be announced,” said an email from Donald Stewart, a spokesman for Senate Majority Leader Mitch McConnell, Kentucky Republican.

Mr. Tobias said the Senate typically clears the decks at the end of the year, and he is “cautiously optimistic” that could be the case in December, before activity grinds to a halt in a tense election year.

“I’m not holding my breath,” he said. “And I don’t think anyone else is.”

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