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Bench Memos

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The ‘Stalling’ Canard



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All of a sudden, in the midst of the Kagan confirmation battle, the Left has exploded in outrage about the pace of judicial confirmations for the circuit and district courts. In the L. A. Times, David Savage has compared the Senate fight over judges to a “family feud,” noting that the president has managed to fill only 36 of the 134 judicial vacancies that have opened during his term.

This new line of attack means, for one thing, that the Left doesn’t want to discuss the unpopular Supreme Court nominee herself and, for another, that although Kagan’s confirmation looks assured, they realize that they have decisively lost the debate over what type of judicial philosophy the American people want on the Supreme Court. But are their complaints about the pace of judicial confirmations justified?

Not really. Simply put, President Obama and Harry Reid have not made judicial nominations a priority apart from the Supreme Court. Furthermore, Republicans are being fairer with respect to Obama’s judicial nominees than Democrats were to President Bush’s. The average time from nomination to hearing is much faster for this president than the last one: Obama’s circuit nominees have waited only 59 days on average; President Bush’s nominees waited 176 days to get a hearing in his first Congress, and the average wait time to get a hearing over his entire presidency was 247 days. Obama’s district-court nominees have waited only 45 days on average, while President Bush’s district-court nominees waited 120 days.

The reason that Obama and Reid are not fulfilling the dreams of the liberal Left on judicial nominations is that the Obama administration is disorganized on this particular issue. A full 52 percent of vacancies are due to the president’s failure to nominate someone. Moreover, Harry Reid has been focused on various other Obama priorities in the Senate, and the Democrats have left the recess-appointments sword sheathed.

But if this is really a crisis and the Democratic Senate is rapidly running out of time, why not use their overwhelming majority to ram nominees through before August recess? The Republicans have not tried to filibuster any Obama nominees, nor could they likely succeed in doing so, given many Republicans’ staunch opposition to the practice. And if the Republicans really are guilty of obstructionism, why not recess-appoint a raft of judges?

Could it be that Obama and Reid are more interested in posturing for the concerned interest groups than in taking whatever bullets they would need to take in order to confirm appellate judges far outside the American mainstream?

At the end of the day, when playing the blame game on this issue, the Left has only to look to the president and the Democrats on Capitol Hill for answers on where to cast the first stones.



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