Signs Our Government Is Broken: The Judicial Vacancy Problem

As of today, there are 75 vacant Federal Judgeships, including one that has been open for seven years.

Late yesterday the White House announced a nomination to the Court of Appeals for the District Of Columbia Circuit, but that’s not the news that stood out to me. Consider this from Lyle Denniston:

The D.C. Circuit Court currently has three vacancies, but there is continued opposition among some Republicans in the Senate to filling those vacancies.  One of the open seats — formerly held by now-Chief Justice John G. Roberts, Jr. — has been vacant since Roberts was elevated seven years ago.  The other two seats have been vacant four years and one year, after sitting Circuit judges took senior status, while remaining on the Court for some continuing service.

Seven years. Going by this list from the Administrative Office Of The United States Courts, that makes Roberts’ seat the longest current vacancy in the Federal Judiciary, but it’s only one of 75 Circuit Court or District Court Judgeships that have not been filed going back as far as (not including Roberts) 2008. Of those, there are 30 pending nominations, but that doesn’t necessarily count the positions for whom someone was nominated only to see the nomination die when the Congress to which it was submitted comes to an end. In other cases, the nominee has simply requested that the nomination be withdrawn, sometimes no doubt simply out of frustration over the Senate’s inability to act on what is one of its Constitutional functions. Many of these judges who retired continue to serve in Senior Status and, since there are not enough judges to go around in many Districts and Circuits, that means their workload likely isn’t all that much different than it was when they were actively serving on the bench. Indeed, former Supreme Court Justice Sandra Day O’Connor has herself served as a Substitute Judge on Appeals Court panels when vacancies, vacations, or leaves of absence have left a particular Court short of the three judges needed for a panel. Even with these resources, though, the judicial vacancy problem  means that dockets around the country are more crowded, that cases move far slower through the system, and that justice is delayed for many people.

We all know the reasons for this, of course. Starting in the Bush Administration the judicial nomination process became more politicized and more contentious. Where the filibustering of a judicial nominee used to be a rarity, it soon became commonplace. At one point while the GOP still controlled the Senate, there were some Senators considering what has been referred to as the “nuclear option,” which essentially would have involved a ruling by the Senate Parliamentarian, or the President of the Senate, that filibusters of judicial nominations is not permitted by the Constitution. It was a move that would have set off a contentious battle between Republicans and Democrats that likely would have ended up in the Courts themselves, but it was averted when a deal reached by the so-called “Gang of 14” led to a cooling of tensions and allowed at least some of the nominations to move forward. It wasn’t a perfect deal, though, and it didn’t really do very much to break the backlog of judicial nominations, or prevent perfectly qualified nominees like Miguel Estrada from being railroaded out of an appointment. Because of that, here we are, at least 75 benches are empty and Senate action on judicial nominees, which used to be pro forma at least for District Court and (most) Circuit Court nominees, is now a rare event because the majority can’t garner the votes to bring the nomination to the floor.

The blame for this goes around completely equally. Republicans blocking Obama nominees are merely doing the same thing that their Democratic counterparts were doing in the Bush Administration. Yes, there is a certain amount of hypocrisy in having them do the same thing they were complaining about just 5 or 6 years ago, but then their allies across the aisle are now complaining about the same thing they were doing 5 or 6 years ago. Perhaps the nuclear option would have been the best option. It  would have solved the vacancy problem rather easily. At the very least, some kind of reform of the filibuster that limits its use in judicial nominations, and other nominations for government positions, would seem to be necessary.

John Roberts left the D.C. Circuit Court of Appeals and became Chief Justice of the United States on September 29, 2005. That was 2,453 days ago. The seat he occupied is still empty. If that’s not a sign that there’s something wrong here, I don’t know what is.

FILED UNDER: Congress, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Moderate Mom says:

    You’ll probably get a lot of comments saying that it’s different when the Republicans do it. It’s not. Both sides do it and both sides should stop blocking qualified candidates from assuming a seat on the Federal bench.

  2. The problem is that the traditional wall between the law side of government and the politics side of government is gone. Everything is political now.

  3. It is certainly a sign that the Senate is broken.

  4. Jeremy says:

    @Stormy Dragon: I agree completely. Instead of asking candidates on how law should be interpreted, the Senate grills them on their pet issue–not the point of the judiciary at all.

  5. mattb says:

    Doug,

    In damning both parties equally you nicely sidestep the issue of the extreme increase in the scale of blocking judicial candidates during Obama’s tenure.

    Quoting from the Atlantic:

    It has taken four to five times longer for Obama nominees to come to a vote than Bush nominees, even when there’s bipartisan support for them in committee, because Republicans have repeatedly blocked votes. As James Fallows has chronicled, GOP abuse of the filibuster has been far worse than Democratic abuse.
    http://www.theatlantic.com/politics/archive/2012/04/chart-of-the-day-obamas-epic-failure-on-judicial-nominees/255651/

    It is true that the Dems started us down this path. But saying that both parties are equally at fault completely ignores the fact that over the last three plus years, the Republicans have greatly accelerated the process.

    For all the talk of Miguel Estrada, GWB had approximately an 85% success rate in getting his nominee’s confirmed. Obama’s success rate has been hanging around 45%. That’s a significant difference, and suggests that things might not be as equal as you seem to think.

    That said, chances are, if he wins in the fall, the Senate Democrats will work rather hard to ensure Romney’s success rate will be much closer to Obama’s rate than Bushes rate (and at that point, a pox on both their houses).

  6. Gromitt Gunn says:

    I could not have possibly predicted before clicking on the link that the answer would be “Both Sides Do It!!”

    Someone find me my smelling salts.

  7. @mattb:

    And if you don’t think that Democrats will act in precisely the same manner when they are in the minority under a Republican President, you’re being very, very naive.

  8. Nikki says:

    @Doug Mataconis: Obviously, you didn’t read what mattb wrote all the way to the end:

    That said, chances are, if he wins in the fall, the Senate Democrats will work rather hard to ensure Romney’s success rate will be much closer to Obama’s rate than Bushes rate (and at that point, a pox on both their houses).

  9. Tillman says:

    @Nikki: Uhh, yeah, what she said.

  10. @Nikki:

    Matt’s desire for me to condemn one party over the other when both are clearly responsible for what has happened here is simply disingenuous. It was the Democrats who started this during the Bush years, they’ll continue it if Romney is President, it’s really quite hypocritical to complain about the fact that the opposition has merely copied your technique.

  11. Nikki says:

    @Doug Mataconis: Yeah, both sides do it, although, since the election of the black president, one side seems more motivated than the other. Doesn’t change the fact that mattb is right.

  12. al-Ameda says:

    @mattb:

    For all the talk of Miguel Estrada, GWB had approximately an 85% success rate in getting his nominee’s confirmed. Obama’s success rate has been hanging around 45%. That’s a significant difference, and suggests that things might not be as equal as you seem to think.

    Sure, they both do it, however, Republicans are far more dedicated to obstructing Democrats than the other way around. If Romney is elected I would hope that Democrats take a mature approach and offer Romney exactly the kind of bipartisan cooperation that Republicans afforded Obama.

  13. Where does the number of positions, filled and unfilled, come from?

    Did the number of serving judges grow, even as the number unfilled grew as well?

  14. James says:

    Doug,

    You write:

    The blame for this goes around completely equally. Republicans blocking Obama nominees are merely doing the same thing that their Democratic counterparts were doing in the Bush Administration.

    If you’re going to make bold claims about how the “blame for this goes around completely equally,” you need some evidence to back it up. Unsurprisingly, the actual numbers on cloture votes doesn’t support your pox on both houses assumptions. You can see a big spike in ’95-’96, and a then again ’07-’08. Both Senates, the 104th and 110th, were Republican-controlled Senates.

    I don’t see how you can characterize Mitch McConnell’s insistence on cloture being the weapon of first resort is in any way “same thing that their Democratic counterparts were doing in the Bush Administration.” It’s clear that you wrote that to help help shoehorn in your ubiquitous “both sides” narrative. Maybe you’re uncomfortable engaging in partisanship, but you could at least do a better job concealing your mental gymnastics.

  15. Tillman says:

    @Doug Mataconis: Clearly responsible? Yes. Equally at fault, which is what mattb was pointing out? No. By framing it in terms of responsibility, you are minimizing the increased intransigence of the Republican minority.

    You are basically saying that since Alfred Nobel invented dynamite, he’s responsible for every mad bomber who uses it.

  16. John,

    That number comes from the Administrative Office of the United States Courts. See the link in the post.

  17. James,

    We’re talking about cloture and blocking of judicial nominees, which became a big enough deal during the Bush years that Republicans considered invoking the so-called “nuclear option.” The probably should have.

  18. SKI says:

    @Doug Mataconis: But you are ignoring the indisputable facts that the Republicans are indeed acting differently today than the Dems did before. They have “upped the ante” and you are projecting that, with a new baseline, the Dems won’t drop out of the game. Now, you are undoubtedly correct but that doesn’t change the reality that the Republicans ARE acting differently than in the past. You are literally blaming the Democrats for things they haven’t done yet.

    85% to 45%. Not the same.

  19. James says:

    @Doug Mataconis: How can you complain about how “disingenuous” it is to “condemn one party over the other” when you ignore actual cloture vote data?

  20. James,

    Because we’re not talking about the filibuster as a whole. I’ve done that several times, and you can find those articles here with a convenient search. We are talking about judicial vacancies and a practice that began with the Democratic minority in the Senate during the Bush Presidency.

  21. mantis says:

    Ah, Doug plays the timeless both sides do it game, ignoring magnitude, because of course he does.

    Back in April the White House noted that since the cloture rules were adopted in 1917, District Court nominees have been filibustered 22 times. 19 of those filibusters have been for Obama nominees. That’s hundreds and hundreds of nominations over a century, and Obama has gotten 86% of all the filibusters.

    Even when nominees have bipartisan support in committee (usually unanimous), Republicans still filibuster, and as a result Obama’s nominations have taken 4-5 times longer to come to a vote than Bush’s were.

    Republicans blocking Obama nominees are merely doing the same thing that their Democratic counterparts were doing in the Bush Administration.

    Bullshit. Your pathological desire to equate every action one of the parties takes with the other is absurd, simplistic, and just plain wrong.

    The Democrats didn’t filibuster all of Bush’s district court nominees. The Democrats didn’t filibuster every nomination, even if the committee approved him/her unanimously. The Democrats didn’t hold the entire government hostage for no reason whatsoever.

    Your “both sides do it” schtick makes you look like such a mindless tool.

  22. @mantis:

    The fact that Republicans have gone nuclear on a tactic that Democrats originated during the Bush Era does not absolve the Democrats of responsibility for their actions.

  23. @SKI:

    Upping the ante is what politics is all about. The Democrats opened this Pandora’s Box;.

  24. James says:

    @Doug Mataconis: Yes, I’m aware. I’m not sure how cloture votes on judicial nominees significantly different from NLRB nominees, IPAB nominees, or any other nominee that requires the Senate’s advise and consent. I mean, this has been a big problem ever since Barack Obama took office:

    Waiting for Senate approval are: the two Fed governor nominees, Jerome Powell and Jeremy Stein; Martin Gruenberg, chosen to chair the FDIC; Thomas Hoenig, appointed as FDIC vice chairman; and Thomas Curry, picked to head the Office of the Comptroller of the Currency. The Senate Banking Committee greenlighted Gruenberg, Hoenig and Curry weeks ago. But given the smarting over Cordray, many have wondered whether Republicans would turn on these nominations to punish the president for circumventing a Senate vote. (emphasis mine)

  25. James says:

    @Doug Mataconis: No Doug, politics is not “about” parlor games and childish recriminations. It’s about crafting a functioning government within the confines of our Constitutionally design. Republican Senators have a Constitutional mandated duty to “advise and consent” the President on executive and judicial nominations. The Republican minority of the 110th and 111th Senate is very clearly in dereliction of the duty, for the hope of a chance of electoral gain.

  26. James,

    If your friends the Senate Democrats are so reasonable about all this then explain to me why they have not bothered to reform the filibuster, for nominations or any other purpose, when they’ve had the opportunity.

    The answer, of course, is because they want to be able to use it themselves in the future.

  27. mantis says:

    @Doug Mataconis:

    The fact that Republicans have gone nuclear on a tactic that Democrats originated during the Bush Era does not absolve the Democrats of responsibility for their actions.

    I never said it does. Any other strawmen you want to fight with?

  28. @mantis:

    Then I suppose I misunderstand your point. This all started with Matt wanting me to admit that it’s really just the GOP’s fault when that clearly isn’t true

  29. mattb says:

    @Doug Mataconis: Thanks for not reading… let alone seriously considering what I wrote.

    My issue WAS NOT to excuse the Dems. And contra what you wrote I closed by explicitly saying that they would most likely continue the current pattern.

    My issue was that you seem to think that there’s some level of equivilancy in going from an 86% approval rate to a 44% approval rate. Bush got the majority of his nominee’s confirmed. Obama has not even gotten half of his nominee’s confirmed.

    Again, I expect that the Democrats will continue this trend in the current political environment. That makes me sad. And if they do, then without a doubt, both parties share equal blame. But pretending in the meantime that the Republican Senators have not done everything within their power to shut down the Government for political gain is absurd on it’s face.

  30. @mattb:

    I am searching for the part of my post where I absolved the GOP of anything. I cannot find it

  31. mattb says:

    @Doug Mataconis:

    This all started with Matt wanting me to admit that it’s really just the GOP’s fault when that clearly isn’t true

    Jesus Christ Doug — read what I wrote. Seriously, go back and read it.

    I wasn’t attempting to say the Democrats were not at fault. Period. I agree that they began this process.

    I was saying that the idea that the fault is equal is problematic. Again:
    Bush 86% approval rate. Obama 44%.

    I was simply saying you didn’t address the shift in scale that went on.

    I’m not saying the Dems didn’t do something bad. I’m simply suggesting that the Republicans took something bad and made it much WORSE!

    And I explicitly concluded by saying that I unfortunately expect the Dems to continue what the Republicans did… and at that point, I think your position would be right.

  32. Matt,

    Perhaps it’s because I am not at all interested in scoring partisan points, and because it’s a problem regardless of how successful the effort is?

  33. mattb says:

    @Doug Mataconis:

    I am searching for the part of my post where I absolved the GOP of anything. I cannot find it

    Ok… then let’s call a truce because I can’t seem to find the part in my initial comment where I absolved the Dems of anything.

    Perhaps we’re just disagreeing about where to put the emphasis.

  34. James says:

    @Doug Mataconis: FFS Doug, did you see SKI’s comment? You can’t just assign blame to people for things that have or haven’t done yet. Do you have Harry Reid on tape somewhere saying that filibuster reform won’t happen because he wants to continue the use of cloture as a blunt cudgel to shape policy? You keep writing “of course,” as if the only possible conclusions that can be reached are the Doug Mataconis conclusion; which is not only silly but irritating in your inability to weigh conflicting opinions, or actually research an issue. Harry Reid said way back in May 2012 that:

    Senator Udall and Senator Merkley want to do something to change the rules regarding filibuster. If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused, and abused.

    Read the whole article, as Klein explains:

    Reid’s comments came after Republicans filibustered his attempt to move a House-passed compromise reauthorizing the Export-Import Bank. But the proximate cause of Reid’s ire hardly matters. The point is that he’s concluded he was wrong to oppose filibuster reform when Democrats had the chance.(emphasis mine)

  35. James,

    Search the archives and you’ll see I’ve written at least three posts about the Merkley propsal. Reid and the Senate Democratic leadership rejected it when they had the chance to pass it with a simple majority, so Reid’s caterwalling now is either a sign of incompetence, or simply just whining.

  36. James says:

    @Doug Mataconis:

    You wrote:

    I am searching for the part of my post where I absolved the GOP of anything

    Found it for you:

    The blame for this goes around completely equally.

    You’re clearly absolving Senate Republicans by drawing a (false) equivalence between their actions and the Democrats.

  37. EddieinCA says:

    Man #1 robs man on street $100.

    Man #2 robs $10 million from people in Ponzi Scheme.

    Both thefts are equal.

    So says Doug.

  38. James,

    That’s the response I’d expect from a partisan. Again, why did Harry Reid reject the idea of filibuster reform when he had a chance to pass it with a simply majority in January 2011? Heck, for that matter, why didn’t the Senate Democrats reform the filibuster when they had 60 votes in January 2009?

  39. mattb says:

    @Doug Mataconis:

    Perhaps it’s because I am not at all interested in scoring partisan points, and because it’s a problem regardless of how successful the effort is?

    Do you really think I’m interested in partisan points? Seriously?

    My issue with both sides are equally to blame is the idea that because the Democrats began this process, that it can be read as justifying the Republican response. Which in turn justifies the Democratic response that will follow and we continue down this stupid path.

  40. James says:

    @Doug Mataconis:

    Search the archives

    I’m not your research assistant. If you have something to say to defend yourself, cite it. I’m also not sure how the failure of the Merkley proposal is proof-positive that “of course,” Democrats plan to use the filibuster as a blunt policy tool.

  41. mantis says:

    @Doug Mataconis:

    Then I suppose I misunderstand your point. This all started with Matt wanting me to admit that it’s really just the GOP’s fault when that clearly isn’t true

    I was just responding to your main post. You said this:

    The blame for this goes around completely equally.

    And it’s bullshit. The actions are not equal, and the blame is not equal. Again, Obama’s nominees wait 4-5 times longer to get a vote than Bush’s, and 19 of a total of 22 district court nominations ever filibustered have been Obama’s. This is not equal, it is exponentially worse.

    I don’t like what the Democrats did, but they did it to use the power of the minority to object to specific judges they felt were unsuited for the positions to which they were nominated. The Republicans filibuster everybody, no matter what, even when they have unanimous votes out of committee. This is not principled objection, it’s treachery. The Democrats filibustered nominees to keep extremists (in their minds) off the bench. Republicans are doing it to shut down the government. They are not representatives of the people. They are malicious saboteurs.

  42. mantis says:

    @Doug Mataconis:

    Again, why did Harry Reid reject the idea of filibuster reform when he had a chance to pass it with a simply majority in January 2011? Heck, for that matter, why didn’t the Senate Democrats reform the filibuster when they had 60 votes in January 2009?

    Because there is a difference between thinking the filibuster shouldn’t exist and thinking it shouldn’t be maliciously abused.

  43. mantis,

    You don’t have to eliminate the filibuster to reform it. A reform plan was presented to Senate Democrats in January 2011. It was rejected.

  44. James says:

    @Doug Mataconis:

    That’s the response I’d expect from a partisan.

    Yes, I’m a boo-boo head. Can I call you a name now? Will that help my argument?

    Again, why did Harry Reid reject the idea of filibuster reform when he had a chance to pass it with a simply majority in January 2011? Heck, for that matter, why didn’t the Senate Democrats reform the filibuster when they had 60 votes in January 2009?

    Perhaps because they had an actual legislative agenda they wanted to pursue, instead of playing parlor games? I don’t see how any of this really changes the fact that the Senate Republicans are in clear dereliction of their constitutionally-mandated duty to advise and consent the President on his appointments.

  45. James,

    So the Democrats can complain about the filibuster while at the same time refusing to even consider reforming it? Wow, talk about having it both ways.

  46. mattb says:

    @Doug Mataconis: Working backwards…

    Heck, for that matter, why didn’t the Senate Democrats reform the filibuster when they had 60 votes in January 2009?

    *pet peeve* Could everyone agree to stop using the talking point that the Democrats had 60 votes in January 2009. That’s been largely proven to be a false statement. Remember that it took forever for Franken to be be seated, Leiberman might have caucused with the Democrats but was not an assure vote, and two other senators were sidelined by health issues. *done with pet peeve*

    Again, why did Harry Reid reject the idea of filibuster reform when he had a chance to pass it with a simply majority in January 2011?

    You completely have a point here. The issue with any sort of reform on the filibuster is tied to the fact that the majority party knows that sooner or later it will be the minority. This is the same reasons that the Republicans did not enact “the nuclear option.”

    Until such time as we elect people (on both sides) who are willing to put country ahead of party, this will be an ongoing problem.

  47. James says:

    @Doug Mataconis:

    A reform plan was presented to Senate Democrats in January 2011. It was rejected.

    How does that absolve Senate Republicans from the fact that they are in clear dereliction of their constitutionally-mandated duty to advise and consent the President’s appointments nominees?

    You’re treating this like a rhetorical game Doug, because that’s what politics is to comfortable labor-cartel employed libertarian lawyers like yourself. Republicans abuse an institutional tool, but the Democrats must be to blame, because they didn’t fix it in time. Heads I win, tails you lose.

  48. @mattb:

    First of all, at the start of the Senate session in 2009 they would’ve only needed a simple majority (51 votes) and a favorable Parliamentary ruling for the Senate President (a guy you may have heard of named Joe Biden) to implement a reform of the rules, including the filibuster. If it isn’t done at this time, then under Senate rules you need 67 votes to amend or change the rules during the Senate session itself. So, the 60 vote thing was mostly a throwaway line I will admit. Nonetheless, they had TWO chances to change the rules and they have passed on it both times.

  49. @James:

    Meanwhile, you are absolving Senate Democrats of the fact that they have completely failed to make any effort to reform the filibuster when they’ve had the power to do so.

  50. anjin-san says:

    That’s the response I’d expect from a partisan

    Can you do no better than this? Apparently not.

  51. mantis says:

    @Doug Mataconis:

    You don’t have to eliminate the filibuster to reform it. A reform plan was presented to Senate Democrats in January 2011. It was rejected.

    I love how your “both sides do it” schtick disappears as soon as it requires you to criticize Republicans. The reform plan was not “presented to Senate Democrats.” It was presented by Democrats Tom Udall and Jeff Merkley. It did not get support from leadership in either party (and no Republican support whatsoever), and ended up dying because, you guessed it, they couldn’t get unanimous consent to debate the proposed rules. Yes, filibuster reform was (effectively) filibustered.

  52. mantis,

    The Merkley-Udall plan didn’t need Republican support at all. If the Democratic caucus had united behind it, it would have passed and the Senate rules would have been amended.

  53. James says:

    @Doug Mataconis:

    Nonetheless, they had TWO chances to change the rules and they have passed on it both times

    Or Republicans could just stop using the filibuster as a blunt policy tool? Do you not understand how these are two separate issues? The issue at hand here-judaical vacancies-is pretty clearly a product of Senate Republicans using the filibuster to shape policy, or hamstring the functioning of executive departments and the Federal judiciary. Filibuster reform is policy compromise the is becoming more and more apparent, because of the aforementioned intransigence.

  54. James says:

    @Doug Mataconis: So Democrats responsible for solving the problems caused by Republican intransigence? Am I reading you right?

  55. James,

    So the filibuster is only bad when it’s in the hands of those evil, evil Republicans?

    Seriously, the partisanship makes me sick.

  56. mantis says:

    Heck, for that matter, why didn’t the Senate Democrats reform the filibuster when they had 60 votes in January 2009?

    They didn’t have 60 votes in January 2009, because Coleman held up Franken’s being sworn in until July 7, because Republicans purposefully and maliciously obstruct the proper functioning of government. I’m sure you’ll figure out a way to claim both sides do it though.

  57. James,

    Perhaps you didn’t realize it but opposition parties aren’t required to agree with the majority and the filibuster has been around for decades. It could be reformed, but Reid and his cabal refuse to do anything about it.

  58. As I already explained they would only have needed 51 votes to change Senate rules at the beginning of a session

  59. Rick DeMent says:

    Yes I see Doug’s point, the republicans double the stupidity (number of judicial filibusters) in retaliation so both sides are equal . Got it.

    I would say that if they equaled it that would be both sides do it … but no they had to double it daring the democrats to double it then again.Very mature of them 🙂

  60. James says:

    @Doug Mataconis: Did I ever call the Senate Republicans “evil”? Did I ever claim that “opposition parties are required to agree with the majority”? Are you a child?

    You keep pointing out how the filibuster hasn’t been reformed, yet you keep skirting around the reasons why it needs reform; Senate Republicans are using the filibuster indiscriminately to shape policy and hamstring Federal departments for the craven hope of electoral gain.

  61. James,

    The people who have yelled the loudest about filibuster reform have been Democrats and it’s their party that has passed up the opportunity to do something. The obvious reason is because Senate Democrats want to make sure they have the same legislative tools available to them when they, inevitably, are in the minority.

  62. James says:

    @Doug Mataconis: Again, are you saying Senate Democrats are responsible for the unprecedented volume cloture motions filed by Senate Republicans?

  63. James,

    Again, I am talking about judicial vacancies only.

    And, again, the Republicans are merely following in the footsteps of their Democratic colleagues in that particular area.

  64. James says:

    @Doug Mataconis: Yes yes, to unprecedented heights. Just because you elide by it, doesn’t mean it not true.

  65. SKI says:

    @Doug Mataconis: The insane/sad thing is that you don’t seem to realize how much of a partisan you are coming off as.

    The people you are attacking as “partisans” are stating, openly and clearly, that the Democrats are not 100% right.

    You, on the other hand, can’t seem to bring yourself to admit that there is an actual difference between the two parties. When confronted with the actual facts (that there is a substantive, material difference in how the two parties used the filibuster), you (a) project that in the future the democrats will act as poorly as Republicans are right now and (b) change the subject to blame the Democrats for screwing up and not changing the rules when they had the chance.

    ____

    On a related point, Doug, have you ever admitted in any thread’s comments that your opinion might possibly be changed by facts presented that you didn’t think about when you wrote your initial post? You correct clear errors when you screw up names and such but when when presented with a material error in fact (your assertion that the parties’ behaviors have been the same to date when they haven’t), you simply dig in your heels.

  66. SKI,

    Since I consider both of our major political parties, especially their Congressional contingents, to be abject failures, why would I care which one is marginally worse?

    This is the real sign of partisanship. Several of you have spent the morning desperately trying to convince me that the bad, bad Republicans must be condemned more loudly. Since I’ve never actually endorsed their tactics, I feel no need to condemn them any more loudly than I would the Democrats.

    I wrote a post pointing out a problem with our judicial nomination process, problem put in motion by Democrats during the Bush Administration. And it quickly turned into a game of “Blame the other guy.” This is why I despise partisan politics.

  67. Rob in CT says:

    Oh, what a surprise.

    Both sides do it (equally) is a religious belief for Doug. There is no point in arguing it. No matter what the Dems do or don’t do, no matter what the GOP does/doesn’t do, Doug will claim equivalence.

    There’s no point in discussing it with him, providing him with data, etc. You might as well argue with a brick wall.

  68. Tillman says:

    Give up on it. Our loyal libertarian’s understanding of cause-and-effect is warped. It’s missing the step between Democrats not reforming the filibuster and Republicans abusing the filibuster: the decision by Republicans to abuse the filibuster. Normally in ethics, the decisions of rational agents factor in to how they are to be judged. Actually, your same logic vindicates anyone who will vote for Obama this November despite his continuation of “War on Terror” policies, since, hey, Bush started it. It’s a nice kind of moral amnesia, isn’t it?

    If you want to call what the Democrats did during Bush’s terms an abuse of the filibuster, you’re by all means allowed to debate that point. What you can’t do is compare the effects of Democratic ‘abuse’ of filibustering in Bush’s terms to Republican filibustering in Obama’s term as equivalent. The effects, Doug, which is what your post on judicial vacancies was lamenting, if I read it correctly.

  69. SKI says:

    @Doug Mataconis:

    Perhaps you didn’t realize it but opposition parties aren’t required to agree with the majority and the filibuster has been around for decades. It could be reformed, but Reid and his cabal refuse to do anything about it.

    (1) Reid has publicly stated that he made a mistake in not changing it. He reached a “gentleman’s agreement” with McConnell and passed on the proposed reform. He was wrong – and admits it.

    If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” Reid said on the floor. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame.”

    (2) The filibuster hasn’t been around as it is currently being used for decades.

  70. Tillman,

    Since the filibuster is a rule of a the Senate with clearly defined procedures and no limitations on it’s use, saying it is being “abused” merely means one doesn’t like the manner in which it is being used, or, perhaps more precisely, the party that is using it.

    I’ve written several times of my support for the idea of filibuster reform, the fact that the Senate Democrats have failed to even attempt to do so while complaining about it no end is a sign that they have no intention of ever reforming it.

  71. Tillman says:

    why would I care which one is marginally worse?

    I thought you wanted to know why there are so many judicial vacancies. If one party’s actions, following the mold of another party but taking it to a new height, are primarily responsible, it would seem intellectually proper to assign the most blame to the actor most directly responsible, wouldn’t it?

    The problem is your equivalency doesn’t do this, and that’s what people are taking umbrage at.

  72. SKI says:

    @Doug Mataconis: I guess the feeling is mutual because I despise people who are incapable of admitting that just maybe their preconceived notions are wrong when presented by evidence.

    The problem with your post and comments isn’t that one side is blameless, neither is. The problem is that the two sides aren’t equally to blame.

    The “partisans” you are so smugly despising can admit that there is blame to go around. Can you admit that one side, on this issue, gets a larger portion of that blame?

  73. Tillman says:

    Since the filibuster is a rule of a the Senate with clearly defined procedures and no limitations on it’s use, saying it is being “abused” merely means one doesn’t like the manner in which it is being used, or, perhaps more precisely, the party that is using it.

    …you’re writing about judicial vacancies. You don’t like judicial vacancies. The Republicans are creating judicial vacancies via heightened use of the filibuster. I gather, then, that you don’t like how the filibuster is being used. Is that an inaccurate implication to draw?

  74. No Tillman, the blame goes to the institution and the parties that have been in charge of it over the past decade or so

  75. SKI says:

    @Doug Mataconis:

    No Tillman, the blame goes to the institution and the parties that have been in charge of it over the past decade or so

    So you are saying it is the Democrats’ fault they haven’t stopped the Republicans from abusing rules in a way they hadn’t been abused before? Gotcha.

    No, you aren’t a partisan at all….

  76. James says:

    @Doug Mataconis:

    Since the filibuster is a rule of a the Senate with clearly defined procedures and no limitations on it’s use, saying it is being “abused” merely means one doesn’t like the manner in which it is being used, or, perhaps more precisely, the party that is using it. (emphasis mine)

    Ah yes, page two of your playbook; engaging in epistemic questions to help muddy the waters. This is a silly and stupid point. Look at the cloture vote chart I posted on my first comment. Republican use of cloture votes has been unprecedented since Barack Obama took office, for the specific goal of damaging the executive and judiciaries ability to function

  77. James,

    And you continue to ignore the fact that Democrats have made absolutely no effort to reform the supposedly “broken” filibuster

  78. SKI,

    No I am saying that the Democrats haven’t stopped the Republicans because they don’t want to, because they fully intend to go back to using the same tools when they once again are in the minority.

  79. James says:

    @Doug Mataconis: And you keep ignoring why it’s “broken” in the first place. How are Senate Democrats responsible for the volume of cloture filings made by Senate Republicans?

  80. Tillman says:

    @Doug Mataconis: No, the blame goes to the people in those institutions. I hold humans accountable for human actions. You’re right to properly condemn the Democrats for not reforming something that could potentially be abused. What I don’t understand is why you don’t properly condemn the Republicans for abusing something, and somehow you can render their actions as entirely the fault of a lack of Democratic foresight.

    We’re not discussing the future actions of Democrats, we’re discussing judicial vacancies that exist now.

  81. James says:

    @Doug Mataconis:

    they fully intend to go back to using the same tools when they once again are in the minority (emphasis mine)

    Dude, seriously. Citation needed.

  82. James,

    It’s called political reality. Open your eyes and you’ll realize there’s really no difference between the parties when it comes to their tactics, their vindictiveness, and their desire to attain and retain power.

  83. James in LA says:

    Doug Mataconis has lost this argument today.

  84. mattb says:

    @john personna: Just saw your question… all of the numbers can be found in a few sources. The one I’m pulling my numbers from is from the Alliance for Justice (http://www.afj.org/)

    You can also find a pretty good overview of recent president’s judicial nominations on Wikipedia.

  85. Tillman says:

    @James in LA: You don’t lose arguments, you can just make bad ones. Let’s not frame things in a “winning” or “losing” model, since that reinforces our pet peeve of “politics as team sport.”

  86. SKI says:

    @Doug Mataconis: Facts demonstrating an actual difference in past/current practice be damned!

  87. James says:

    @Doug Mataconis: Seriously Doug? That’s your big retort? A bromide at home in my old undergraduate dorms? No, both parties are not identical. Do you see a hypothetical President Gore designing to invade Iraq? Would a hypothetical President McCain craft regulatory protections would prevent people born with pre-exstining conditions (like me) from being denied the ability to purchase health insurance?

    If you don’t like the fact the Democrat’s haven’t ushered through filibuster reform, that’s fine. But you can’t just ascribe your worst assumptions about people as their obvious intentions, without some kind of evidence.

  88. SKI says:

    @Doug Mataconis: You are conflating a desire not to eliminate the filibuster completely and a desire to eliminate how it is currently being used.

    Reid is on record as stating that he was wrong. You don’t believe him. Fine but you don’t have any proof that he is actually lying now – just your “gut” belief that the two parties are identical.

  89. SKI,

    It’s very convenient for Reid to say he was wrong now, 15 months after the fact.

  90. swbarnes2 says:

    @Doug Mataconis:

    Open your eyes and you’ll realize there’s really no difference between the parties when it comes to their tactics, their vindictiveness, and their desire to attain and retain power.

    If Republicans filibuster 19 judicial nominees, and Democrats filibuster 3, how is that not evidence that there is a difference between Republican and Democratic tactics?

  91. WR says:

    @Doug Mataconis: Except the Democrats didn’t invent this during the Bush administration. The Republicans were doing it to Clinton. Somehow this fact magically continues to elude your notice.

  92. WR says:

    @Doug Mataconis: You are absolutely right that the Dems could have changed the filibuster rules by themselves. But the Democratic leadership still believed in their (totally outdated) view of the Senate as a place where people worked together in good faith, and decided that blowing up the rules was a step too far, especially after the Republican leadership promised not to abuse the cloture rules.

    Over the last couple of months, Reid and Durbin have admitted that they were wrong to stick to the old rules and hope the Republicans would play by them.

    So point to Doug. The Dems were patsies, and the Republicans were lying weasels. So, you know. both sides are identical.

  93. Mike in DC says:

    Doug: just one point. This is not something that just started under the Bush Administration. The Republicans used various tactics to block Clinton’s appointees in the 90s. When Bush took power, they removed the very tactics (I’m thinking particularly of the “blue slips” used to quietly block appointees without having to resort to the filibuster) they used against Clinton. Thus, when they had no other alternatives, yes, the Democrats started filibustering judicial appointees.

    Caveat: I don’t mean to imply that this started with the Republicans in the 90s. The history of abuse of nominees for political ends goes way back. I just wanted to highlight the Clinton years because I thought there was a possible inference that this behavior started with the Democrats in the 2000s.

    Sources:
    History of the Blue Slip
    http://congressionalresearch.com/RL32013/document.php?study=The+History+of+the+Blue+Slip+in+the+Senate+Committee+on+the+Judiciary+1917-Present
    Clinton’s nominee problems:
    http://en.wikipedia.org/wiki/Bill_Clinton_judicial_appointment_controversies
    1998 letter from Rehnquist complaining about the Senate’s blocking of nominees to the bench:
    http://www.nytimes.com/1998/01/01/us/senate-imperils-judicial-system-rehnquist-says.html?src=pm

  94. Tsar Nicholas says:

    It really is a crying shame about Miguel Estrada.

    In any event, both the filibuster and the blue slip process should be outlawed. Barring a voluntary withdrawal, every judicial nominee should receive an up or down floor vote. That said I would not hold my breath wating for that to happen, though, given that that would require a majority of the Senate to possess integrity, intellectual honesty and selflessness, not to mention political cojones. Obviously that describes neither Mitch McConnell nor Harry Reid.

  95. al-Ameda says:

    Well, “both sides do it” effectively preempts a discussion of what needs to happen going forward, and it begs us to see how far back we need to go to find out who started it. Let’s stipulate now that we’ll go back no further than the New Deal.

    In this case, was it during: Bush 43? Clinton? Bush 41, Reagan? Carter? I happen to believe that some of the seeds of the current failure to deal with judicial apoinments lie with (1) the Robert Bork and Clarence Thomas hearings, and (2) the Clinton Impeachment. After that it’s an accumulation of political slights. Let’s stipulate now that we’ll go back no further than the New Deal.

    These days Republicans have absolutely no incentive to move any of the proposed judicial appointments along – there are no negative electoral consequences associated with their obstruction. It’s that simple.

  96. Doubter4444 says:

    @Doug Mataconis:

    It’s very convenient for Reid to say he was wrong now, 15 months after the fact.

    That is, frankly, pathetic. I was not going to comment- it seems pointless, but the above is a joke –

    The fact that the Dems punted on changing it is bad, but the fact that the Senate leader actually admitted that it was a mistake to have punted is worthless….why?
    Because it’s Harry Reid, who you don’t like?
    That’s churlish and immature, which is what the other commenters here are trying to get at: (and maybe it is petty):

    Some sort of acknowledgment that you are slightly wrong on this point, and about the whole “Both Sides Do It” that you regularly do.

    You just don’t get it…. and the reason that so many harp on this point is that it is ENDEMIC of the Republican party (and yes you claim to be “libertarian”, but yeah, right) and the conservative right wing.
    It’s the complete lack of responsibility and accountability for their actions that drives me nuts. I know and admit the Democrats have screwed up, and could have done better, could have done things differently.
    What about you?

    Can you name me one time in the last 11 years that the Republican leadership has even admitted there was a mistake in terms of policy, or strategy.
    Name me one time, one time in the last 11 years that a Republican leader has apologized for anything, at all.

  97. Moderate Mom says:

    @WR:

    I seem to remember that the term “Borking” came into being during the Reagan administration.

  98. James says:

    @Moderate Mom: Fantastic that you bring up Bork, since his nomination is an excellent example how the filibuster is a necessary minority power, when used as a tool of last resort. Specifically:

    Opposition was partly fueled by strong opposition by civil and women’s rights groups concerned with Bork’s opposition to the authority claimed by the federal government to impose standards of voting fairness upon the states (at his confirmation hearings for the position of Solicitor General, he supported the rights of Southern states to impose a poll tax),[14] and his stated desire to roll back civil rights decisions of the Warren and Burger courts.

    If filibustering Bork doesn’t count as a legitimate attempt to protect minority interests, that I can’t imagine what would.

  99. mattb says:

    @WR:

    But the Democratic leadership still believed in their (totally outdated) view of the Senate as a place where people worked together in good faith, and decided that blowing up the rules was a step too far, especially after the Republican leadership promised not to abuse the cloture rules.

    I think this is a good example of stepping to far in the opposite direction.

    Its one thing to say that they might have been hoping for a return to a more collegial atmosphere. But it should be acknowledged that at least a part of the rational driving this is an understanding that the filibuster is an important (and legitimate) tool for the party out of power to use. And since neither party can ever guarantees a monopoly on power (or their being the majority party) it’s in the best interests of both to maintain the fillibuster.

    The question then becomes what is a better form for it to take, if you want to preserve the ability of the minority party to gum up the works while also trying not to have it abused. Frankly I’m not sure if any serious plan has been put forward with that sort of reform.

    If there has been, I’d love to learn more about it.

  100. danimal says:

    Doug’s being willfully obtuse on this, but that’s his schtick and this is his blog…

    My question is: will the GOP continue to obstruct judicial nominations in a second Obama term. I sincerely doubt that Dems would use the filibuster in the same way that the GOP is, because the nature of their political message and the composition of their caucus isn’t as well suited for unanimous party-line votes as the Republicans. President
    Romney would likely have a GOP Senate, even with short coattails, and there is little doubt the GOP would kill the filibuster on day one, making the question moot.

    Let’s assume that the Dems have working control, but close to 50/50. They would not be likely to push through a reform on a party-line vote (imagine Manchin or McCaskill agreeing on such a move if you doubt me). A filibuster reform would have to have leadership signoff from both parties (not at all likely), or it would die (see 2009). Assuming the GOP leadership doesn’t want to lose leverage, they will hold firm against reform. In this (somewhat likely) scenario, does the president gets votes on his judicial selections? Will Supreme Court nominations go anywhere? Will the GOP pay any price for obstruction? How do the courts function after 8 years of blockage. Interesting days may be ahead.

  101. WR says:

    @Moderate Mom: You’re right. And Bork was refused confirmation for exactly the right reason — he was an extreme radical reactionary whose legal views were so far outside the mainstream he had no business on the Supreme Court.

    There is no reason to rubber stamp every appointment. All the appointees need to be fairly evaluated. And Bork was.

  102. Mike in DC says:

    Not to nitpick, but Bork was given a straight up or down vote. He was not filibustered. http://en.wikipedia.org/wiki/Robert_Bork#Supreme_Court_nomination