Senate Obstructionism Reaches New Low

The ever-escalating war over executive and judicial branch confirmations is often associated with big-picture ideological battles over the meaning of our Constitution and the direction of the nation’s highly influential appeals courts.  Rarely do we consider how such fights — often waged using procedural tricks like holds and filibusters — directly affect Americans seeking justice in courts around the country.  Yet a clear illustration of the negative impacts of obstructionism over nominees has emerged in our own backyard at the D.C. Superior Court, the local trial court that serves the residents of the District of Columbia.  Because the District is federally administered, its trial judges have the (dubious) distinction of being subject to Senate confirmation – and thus to the procedural whims of 100 Senators.

There are currently three vacancies on the Superior Court, two of which have been open for more than a year.  President Obama has nominated the following, well-qualified candidates to these three vacancies:

  • In March 2009, President Obama nominated Magistrate Judge Marisa Demeo, a former federal prosecutor in the U.S. Attorney’s Office for the District of Columbia and current Magistrate Judge in the Criminal Division of the Superior Court, to an Associate Judge position vacated by former Chief Judge Rufus King in 2008.
  • In June 2009, President Obama nominated Stuart Nash, who currently serves as Associate Deputy Attorney General and director of the DOJ’s Organized Crime and Drug Enforcement Task, to an Associate Judge position vacated by Judge Rafael Diaz in early 2009.  Nash had previously been nominated by President George W. Bush to fill Chief Judge King’s seat.
  • In January 2010, President Obama nominated Magistrate Judge Milton “Tony” Lee to fill the vacancy on the D.C. Superior Court created by the retirement of Judge Jerry Byrd.  Lee has served as a Magistrate Judge on the Superior Court for more than a decade and serves as the presiding judge of the Court’s Fathering Court.

Demeo and Nash cleared the Senate’s Homeland Security and Government Affairs Committee in May and July of 2009, respectively, with no opposition, and simply await a floor vote.  Demeo is now the longest-pending judicial nomination of the Obama presidency.  The extraordinary delay in these confirmations recently prompted D.C. Superior Court Chief Judge Lee Satterfield to warn the Senate in a letter that an ongoing failure to fill his court’s vacancies “would certainly test our ability to administer justice for the people of the District of Columbia in a timely fashion.”

So what’s the problem?   A single Senator — Jim DeMint (R-SC) — has placed a hold on Demeo’s nomination for reasons he refuses explain beyond an alleged history of “leftist activism.”  Adjudicating criminal cases (as a Magistrate Judge) and prosecuting federal crimes (as an Assistant U.S. Attorney) don’t really seem to fit anyone’s definition of activism, so we’re assuming DeMint has scanned backwards on Demeo’s resume and found that she has previously worked for public interest law firms such as the Mexican American Legal Defense Fund.  (Demeo is also openly gay.  We will give Senator DeMint the benefit of the doubt in assuming this irrelevant fact has nothing to do with his hold on her nomination.)

Senator DeMint has to know how ridiculous this hold is.  President Obama has little choice over who is nominated to the D.C. Superior Court;  by convention, the seven-member D.C. Judicial Nomination Commission selects three names per vacancy on the D.C. trial court and sends this slate to the President, who then chooses a candidate recommended by the Commission for Senate confirmation.  Demeo has stellar qualifications, including serving as a Magistrate Judge on the Superior Court.    She was voted out of Committee nearly 10 months ago without any Republican opposition.

Confirmation of nominees to the D.C. Superior Court has historically been smooth and apolitical, aimed at maintaining a critical, but local, trial court whose judges, some feel, should not be subject to Senate confirmation at all.  With Americans across the political spectrum concluding that members of Congress are not doing the business Americans sent them to Washington to get done, Senator DeMint and other Members of Congress should think hard before taking obstructionism to entirely new places, particularly when the quality of justice for American citizens is at stake.

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