Roberts is right, but will Senate Republicans listen?

ROBERTS IS RIGHT, BUT WILL SENATE REPUBLICANS LISTEN?…. Thirteen years ago today, then-Chief Justice William Rehnquist raised a few eyebrows on New Year’s Day with some unexpected criticism. Rehnquist, an unabashed conservative, was frustrated by Senate Republicans blocking President Bill Clinton’s judicial nominees, and said the political tactics threatened “the quality of justice” in the United States.

Late yesterday, Rehnquist’s even-more-conservative successor, Chief Justice John Roberts, said the status quo on the Senate’s handling of judicial nominees is untenable, and urged lawmakers to solve “the persistent problem of judicial vacancies.”

“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.”

The chief justice noted that the Senate recently filled a number of vacancies. Including 19 recently confirmed judges, the Senate has confirmed 62 of Mr. Obama’s nominees. There are 96 federal court vacancies, according to the Administrative Office of the United States Courts.

“There remains,” the chief justice wrote, “an urgent need for the political branches to find a long-term solution to this recurring problem.”

Roberts added that the need for Senate action is “urgent.”

It’s worth emphasizing that Roberts, like 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.

I have a hard time imagining the GOP caring about the chief justice’s concerns, but I suspect Senate Dems will use Roberts’ report quite a bit this year, urging Republicans to be at least a little less obstructionist.

Indeed, soon after Roberts’ report was released, Senate Judiciary Committee Chairman Pat Leahy (D-Vt.), issued a related statement that noted, among other things:

“Regrettably, in this Congress, Republicans compounded the vacancy crisis by turning away from the Senate’s long-held tradition of promptly considering non-controversial nominees, even those supported by Republican home-state Senators. That obstruction led the Senate to confirm the lowest total number of judges for the first two years of a presidency in the last 35 years. Meanwhile, current and announced judicial vacancies across the country total more than 110. Democrats tried to turn the page on the obstruction of the 1990s when the Democratic majority of the Senate worked to confirm 100 judicial nominees in the first two years of the Bush administration. Republicans have set that progress back.

“I hope that Chief Justice Roberts will continue to join those on both sides of the political aisle who are urging the Senate to confirm qualified judicial nominees in the new Congress. The American people turn to our courts for justice. Democrats stand ready to address the needs of the federal judiciary; I hope Republicans will join us.”

Just for good measure, let’s also note how high this should be on the Senate Dems’ priority list this year and next. Given that the Democratic majority in the Senate won’t be able to legislate much with a Republican-led House anyway, there should be plenty of time for judicial confirmations.

To be sure, Senate Republicans will do what they’ve been doing — slowing everything down, blocking as many nominees as they can. But don’t forget, the Senate will have very little else to do for the better part of two years. Over the last two years, Reid and the Democratic leadership had a lengthy to-do list, and couldn’t eat up the calendar on nominees. GOP obstructionism meant it took at least three days for the Senate to consider one nominee, during which time the chamber could do nothing else, so more often than not, Reid just didn’t bother.

But that won’t be much of a hindrance in 2011 and 2012, when the entire lawmaking process goes from difficult to impossible.