Chief Justice John G. Roberts Jr. called on President Obama and the Senate on Friday to solve what he called “the persistent problem of judicial vacancies.” ...
“We do not comment on the merits of individual nominees,” Chief Justice Roberts wrote on Friday. “That is as it should be. The judiciary must respect the constitutional prerogatives of the president and Congress in the same way that the judiciary expects respect for its constitutional role.”Needless to say, Democrats finally have found something about Roberts which they can cheer. Steve Benen writes that Republicans are the problem, even if Republicans were not singled out by Roberts:
But he identified what he called a systemic problem.
“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 said.
The upshot, he said, was “acute difficulties for some judicial districts.”
It's worth emphasizing that Roberts, like [former Chief Justice] Rehnquist, was not specific in assigning blame to one party for the confirmation mess. But such identification was unnecessary -- it's obvious now, as it was in 1998, that it's the dangerous tactics of Senate Republicans that have undermined the process and created a vacancy crisis.This is revisionist history, of course. While certainly there is a long history of judicial fights, in the modern era the epitome of politicized nomination fights was the nomination of Robert Bork, when Ted Kennedy took to the floor of the senate immediately after the nomination with his "Robert Bork's America" speech:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy..."There is a reason we now referred to highly personal attacks on judicial nominees as "borking" someone.
Miguel Estrada, who was blocked by Democrats from confirmation to an appellate court because he was viewed as being groomed for the first Hispanic appointment to the Supreme Court, and current Republican Judiciary Committee leader Jeff Sessions, whose judicial nomination was withdrawn under threat of filibuster, are other examples.
I don't know what the answer to the problem of politicized appointments is, but I do know that with Obama in office, now is not the time to try to unring the bell.
Update 1-2-2011: In response to a commenter who is citing 6 month old statistics from the Center for American Progress (which runs Think Progress), here is a more balanced and in-context review reflecting that the record of confirmations for Obama is consistent with recent presidents and 24 of the nominations have been delayed by the failure of the Democratic-controlled Senate Judiciary Committee to hold hearings:
In the past week, though, the Senate has confirmed 19 less controversial judicial nominees. The final tally for Obama, over the past two years: 62 judicial nominees confirmed by the Senate, compared to 100 nominees during the first Congress of the George W. Bush presidency, WSJ reports.--------------------------------------------
Vermont Democratic senator Patrick Leahy, chairman of Judiciary Committee, called it a “travesty” that many nominees languished after winning bipartisan approval from his committee.
But Republicans say that Democratic complaints don’t account for an unusually busy Congress, including the two Supreme Court nominations which took up extra time. A GOP aide said a better comparison would be to the 109th Congress, from 2005 to 2007, during which 51 Bush nominees were approved.
An additional 24 Obama nominees who never got a Judiciary Committee vote will see their nominations die at the end of the Congress, though the president can renominate them.
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