Judicial Picking Process From Bad to Worse

Justice Roberts urges end to partisan fights blocking action on federal judges
The Washington Post by Robert Barnes - December 31, 2010

There is an "urgent need" for Senate Democrats and Republicans to put aside their bickering and fill federal judicial vacancies, Chief Justice John G. Roberts Jr. wrote Friday in his annual State of the Judiciary report. It was his first comment about the partisan gridlock on judges that affects President Obama's nominees. But Roberts noted that Democratic and Republican presidents have been frustrated by the "persistent problem" of senators from the opposing party blocking action on nominees. "Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes," he wrote. "This has created acute difficulties for some judicial districts." Roberts said he was "heartened" that the Senate recently approved half of Obama's 38 pending nominees. "There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem," he wrote. Democrats are likely to use Roberts's words to try to hasten action on the nominees. Roberts personally knows about the cost of the process. He was nominated to the U.S. Court of Appeals for the District of Columbia in 1992 by President George H.W. Bush but never received a confirmation vote. The same is true for Justice Elena Kagan, who was picked for the D.C. circuit by President Bill Clinton and whose nomination also languished. Roberts made it clear that he was not urging confirmation of Obama's nominees, just action. "We do not comment on the merits of individual nominees," he wrote. Roberts's call came in the 13th paragraph of his 16-paragraph message. In that way, it was more muted than a previous challenge issued by William H. Rehnquist, his fellow Republican and predecessor as chief justice. Rehnquist caused a stir in his 1997 report when he urged Republicans, who then controlled the Senate, to get moving on Clinton's nominees. "Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary," he wrote. He later repeated the message when the tables had turned, and Democratic senators were delaying votes on President George W. Bush's nominees. The question of whether Republican obstruction of Obama's nominees is unprecedented has devolved into a battle of conflicting statistics. The Senate has confirmed 60 of Obama's nominees to district and circuit courts, far fewer than the 100 confirmed in the first two years of George W. Bush's presidency. Democrats contend that Obama's picks also waited longer for a vote, and that a number of nominees waited months before being approved with scarce opposing votes. But Republicans counter that Obama was slower than Bush in sending nominations to the Senate. And the president also had two Supreme Court justices confirmed: Kagan and Sonia Sotomayor. Such nominations take more time and attention, Republicans say. Bush's Supreme Court nominations of Roberts and Samuel A. Alito Jr. did not come until his second term. The Senate left for the holiday break last month without taking action on 19 Obama nominees. Republicans, whose numbers will be bolstered in the new Congress, have urged the president not to renominate four of the more controversial choices. The federal judiciary has 94 vacancies, 44 of which have been designated "emergencies" by the Judicial Conference of the United States, using a formula based on each court's workload and the length of the vacancy. With the country facing tough financial times, Roberts did not urge Congress to increase federal judges' salaries, a plea that had been the hallmark of his first judicial reports. Instead, he stressed the penny-pinching at which he said the judicial branch has excelled. Courts account for "less than two-tenths of 1 percent of the federal budget," Roberts said. And he said he expects that the Supreme Court's fiscal 2012 appropriations request will be less than its 2011 request. "Not many other federal government entities can say that," he wrote.