The judiciary matters

THE JUDICIARY MATTERS…. Regular readers may have noticed that I’ve been fixated for a long while on the vacancy crisis on the federal bench, and the fact that Senate Republicans have used tactics unseen in American history to prevent votes on President Obama’s judicial nominees. Today, however, this problem seems especially relevant. Josh Marshall noted:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Quite right. This isn’t a sexy or high-profile issue, but conservatives have made a concerted effort over the last couple of decades to shift the judiciary sharply to the right, in part with very conservative nominees from Republican administrations, and in part by doing everything possible to block nominees from Democratic administrations.

And today’s ruling helps make the motivations for such an approach clear.

On a related note, there are currently 38 pending judicial nominees who’ve already been approved by the Senate Judiciary Committee. Nearly all of them were approved with bipartisan support, but Republicans have balked at allowing floor votes on any of them in the lame-duck session.

With the prospect of recess appointments hanging overhead, Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) are working on some kind of deal that would allow floor votes on 19 of these 38 — exactly half of the jurists awaiting confirmation — with the most progressive nominees being left out of the mix.

Jamelle Bouie is entirely correct: “With a huge number of vacancies on the nation’s lower courts, some judges are better than none, but it doesn’t hurt to note that this is a bad deal.”

And just for good measure, I’d like to reemphasize an item from a month ago. Given that the Democratic majority in the Senate won’t be able to legislate much with a Republican-led House anyway, it would make a lot of sense if next year’s Senate makes judicial confirmations a very high priority.

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 nothing 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 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. Why not use that time to start dealing with the vacancy crisis on the federal courts?