On judges, ‘progress’ is relative

ON JUDGES, ‘PROGRESS’ IS RELATIVE…. Before heading out yesterday, the Senate voted to confirm Amy Berman Jackson as a federal district court judge in D.C. The final vote was 97 to 0. It followed a vote on Monday to confirm James Emanuel Boasberg for the same district bench (confirmed 96 to 0), and a vote last week to confirm Max Oliver Cogburn, Jr. to a federal district court in North Carolina.

Given this flurry of activity, it’s tempting to think the Senate is making real progress on institutional duties that were neglected in the last Congress. And in a way, that’s true — there have been meaningful steps in the right direction, and I’m delighted.

But as is often the case in this political environment, “progress” is relative.

Yesterday’s vote, for example, was a unanimous confirmation vote, but Judge Jackson had to wait nine months for an up-or-down vote on the floor. The district court seat she’ll fill has been vacant for more than four years.

Jackson’s confirmation is evidence of “progress” only to the extent that the status quo is hopelessly ridiculous.

There are, despite the recent Senate actions, currently 94 vacancies on the federal bench. It’s a relief when the chamber manages to do anything constructive, but as Jonathan Bernstein recently noted, we’re looking at a good news/bad news dynamic.

The good news is that the deal struck by Harry Reid and Mitch McConnell seems to be holding, and the Senate seems to be processing three judges a week.

The bad news is how limited that deal is. Republicans are still filibustering every single nomination; the only difference now is that on those nominees for which Democrats have the votes to defeat the filibuster, Republicans are not dragging their feet and eating up extra Senate floor time. Two confirmations yesterday were unanimous, and one was a voice vote. In fact, so far this year, every confirmation has either been unanimous or by voice vote. […]

In other words: nice to have a few of the easiest confirmations processed, but this is still bad news overall.

Agreed. The vacancy crisis on the courts remains very real. It’s untenable and arguably dangerous.

Republican-appointed judges want the Senate to do more; the Federal Bar Association wants the Senate to do more; even Supreme Court Chief Justice John Roberts wants the Senate to do more.

For much of the political establishment, this may seem like a routine partisan game. Democrats don’t like to confirm judicial nominees from Republican presidents; Republicans don’t like to confirm judicial nominees from Democratic presidents. It’s just how the process goes.

Except, this is wrong. The vacancy rate simply doesn’t get this high, and Senate minorities simply don’t stand in the way of so many qualified nominees. This isn’t normal, and if we expect the judicial branch to function as it should, it can’t continue.

* Update: A special thanks to Glenn Sugameli at Judging the Environment, my go-to expert on judicial nominees and confirmations, for helping me with some of the background info I needed for this post.