Judicial nominees start moving — but there’s a catch

JUDICIAL NOMINEES START MOVING — BUT THERE’S A CATCH…. As of a week ago, there were 38 judicial nominees, all of whom have been approved by the Senate Judiciary Committee, awaiting confirmation votes on the Senate floor. Given the vacancy crisis, and the drastic effects this is having on the federal judicial system, it was past time for some progress.

The good news is, 12 nominees have been confirmed, unanimously, since Friday. The bad news is, the progress is the result of a less-than-ideal agreement.

After a monthslong blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama’s non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal.

Among the four is Goodwin Liu, a law school dean seen as a potential future Supreme Court pick, whose current nomination to the 9th U.S. Circuit Court of Appeals in San Francisco has sparked strong criticism from Republicans. […]

The agreement was worked out between Senate Majority Leader Harry Reid and his Republican counterpart, Sen. Mitch McConnell of Kentucky, with the knowledge of the White House, officials said.

The contours of the deal are in line with rumors from last week: Republicans will “let” the Senate confirm at least 19 of the 38 jurists, with the understanding that Democrats won’t even bring up the most progressive nominees. In this case, that’s a group that includes district court nominees Liu, Edward Chen, Louis B. Butler Jr. and John J. McConnell, Jr.

It’s worth pausing to appreciate the procedural dynamic here. The Senate has a constitutional obligation to consider judicial nominees, and a small Republican minority is calling the shots, agreeing which jurists will be “allowed” to receive votes, based on GOP graciousness. It’s a reminder that the institution is in desperate need of reform.

Nevertheless, remember when Senate Republicans spent six years whining incessantly about obstructionism of Bush’s judicial nominees? Remember when they said failing to give up-or-down votes to these nominees tore at the very fabric of American democracy?

They don’t remember this at all.

Of course, there’s also an arithmetic problem that hasn’t been worked out. There were 38 pending nominees, a total that dropped to 26 after a recent spate of confirmation votes. Republicans have agreed to advance seven more*, which will lower the total to 19 pending nominees. Four of those jurists have been deemed unacceptable to the GOP.

But what about the other 15? At this point, their fate is unclear.

Just as a reminder, those nominees that don’t get votes in the lame-duck session will have to start all over again next year.

* Update: I made an arithmetical error, which I’ve corrected. The text as it currently reads is accurate.