Here comes the judge … not!

By Rebecca Hagelin

In the lazy days of late summer, when Congress is off campaigning and Washington more or less grinds to a halt, it’s easy to forget those poor judges that President Bush nominated to various federal judgeships – seemingly ages ago.

Other than the fact that the American Bar Association gave many of them its highest rating – “well-qualified” – what does the U.S. Senate know about the people President Bush nominated? Some have yet to receive a hearing before the Senate Judiciary Committee, let alone a vote.

Why care now, especially with the Republican convention in full swing? The media coverage will be wall to wall, just as it was with the Democratic convention last month. Besides, elections come and go. Congresses come and go.

But the march of justice goes on. It can be slowed – and has been by a vacancy rate of district judges that approaches 8 percent and of appellate judges that now exceeds 15 percent. But it can’t be stopped. We Americans continue to look to our courts for civil justice and to put and keep the criminals among us behind bars.

This unwarranted stonewalling of judges is getting out of hand. Democrats in the Senate, who now find themselves in the minority, have resorted to filibustering to prevent judges from receiving their hearings. Because of Senate rules, rather than gather up 50 votes to approve a nominee, supporters or members of the administration must get 60 senators on board.

The use of filibusters by one party to up the ante for judges from 50 votes to 60 is unprecedented. The only other time a filibuster was used to thwart a presidential nominee to the bench came in the late 1960s, when President Johnson attempted to elevate his good friend, Abe Fortas, who already was on the Supreme Court, to chief justice. And it was a bipartisan filibuster.

The process is meant to weed out extremists, hacks appointed through political patronage or those with backgrounds unworthy of the bench. It’s not meant to serve as a political litmus test for nominees. The ABA says all of the more than 100 judges President Bush has appointed are either “qualified” or “well-qualified,” its two highest ratings. What prevents them sitting on the federal bench today is a desire by President Bush’s enemies to deal him personal political defeats and to thwart his influence on the federal judiciary.

The problem is America elected President Bush. That means they chose to have his influence on the federal judiciary. Provided the judges are qualified – and the ABA says they are – they deserve to serve.

And it’s not tit for tat, as we often hear claimed. My colleague Todd Gaziano of The Heritage Foundation’s Center for Legal and Judicial Studies says the average time a nominee has waited for final Senate action has grown substantially over the years but never more starkly than during President Bush’s term. President Reagan’s first 11 nominees to the appeals court waited 39 days for action. The first 11 of President George H.W. Bush waited 95 days; the first 11 under President Clinton, 115 days. And all of those judges were confirmed.

President Bush’s nominees have waited, on average, more than 400 days and barely a quarter of them have been confirmed.

And what does this mean to us mere citizens? It means judges now routinely take shortcuts to whittle down their workloads. Instead of three judges being required to rule on an appeal, the courts go with two. Perhaps that third judge would’ve seen something – pro our side or pro their side – that the others didn’t. Maybe not always, but we put the number at three for a reason.

Others cancel oral arguments on what they perceive to be unimportant or routine cases. A lot of times they don’t realize how important a case is until oral arguments. Others spend less time per case, dole out more work to clerks or simply pass bad law right on down the line to be dealt with later.
Courts now are looking into whether judges in the 6th Circuit Court of Appeals deliberately kept a spot vacant to help the pro-set-asides contingent in one of the University of Michigan diversity cases.
Who is hurt most by this chicanery? Poor or minority litigants, say Gaziano and others. Rich folks have the best lawyers. They can write briefs that will convince overworked judges looking for shortcuts to go their way. The poor may well find themselves losing cases precisely because their senators refuse to fill vacancies on the federal bench out of nothing but political spite.

That’s why I say: Up or down in 60 days. Why is that so hard?