Confirmation molasses

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Tuesday, January 4, 2011

INCREASINGLY RANCOROUS confirmation brawls are taking a toll on the federal judiciary, and so on American justice. Controversial but qualified people are often left twisting slowly, their nominations never voted on. Recently, even nominees with bipartisan support have had to wait many months before receiving a floor vote. The wheels of justice in courts across the country are slowed as politicians attempt to score points and seats remain vacant.

None of this is new, but now Chief Justice John G. Roberts Jr. has offered a cogent critique that deserves attention - and that ought to prod the other branches of government to pick up the pace. The "persistent problem" has created "acute difficulties" for many overwhelmed courts, the chief justice wrote in his year-end report on the federal judiciary. "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.

That dynamic has certainly been in evidence recently. Republicans justifiably squawked at the filibuster of President George W. Bush's nominees but now use similar tactics against President Obama's picks. Democrats jealously guarded their constitutional prerogative to block "unacceptable" Bush nominees yet now blast Republicans who prevent Obama nominees from moving forward.

The result is predictable and debilitating: There are 97 vacancies on the federal bench, according to the Administrative Office of the U.S. Courts; 44 of those vacancies are considered "judicial emergencies" because of the length of the vacancy and the workload of the court. A paltry 60 of President Obama's nominees have been confirmed during his first two years in office, 19 of them during the last days of the lame-duck Congress. Compare that with the 100 nominees Mr. Bush saw ascend to the bench during his first two years.

Some of the blame lies with Mr. Obama, who has been slow in making nominations. Dysfunction in the Senate - including failure of Democrats to schedule votes and obstructionism by Republicans on some trial court nominees - has also eroded the tradition of deference to the president's selections.

Chief Justice Roberts rightly called on both the executive and the legislative branch to "find a long-term solution to this recurring problem." Democrats and Republicans, liberals and conservatives may not often agree on the chief justice's pronouncements. This is one judgment both sides should embrace.


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