Federal Courts and Nominations

WSJ Can’t Keep its Story Straight on Judicial Nominations

by Xan White, Research and Special Projects Associate, Constitutional Accountability Center

This Monday, a Wall Street Journal editorial decried alleged Senate “stonewalling” of judicial nominations in the course of calling on Republicans in the Senate to, well, stonewall a piece of legislation designed to make the federal judiciary more able to handle its caseload. And that odd bit of doubletalk wasn’t the strangest feature of the piece—one that aptly, if unintentionally, demonstrated the extent to which partisan blindness has taken over even media coverage of the judicial nominations process.

The Journal begins with a discussion of the failed Federal Judgeship Act of 2008, introduced in the Senate Judiciary Committee on March 13, 2008. The Act proposed to expand the federal judiciary on January 21, 2009 by adding 12 circuit court judgeships and 43 district court judgeships. When the bill cleared committee and reached the Senate floor on May 15, 2008, its Republican co-sponsors included Orrin Hatch, Norm Coleman, Lindsey Graham, Chuck Hagel, and Mel Martinez.

The Journal mentions the bipartisan support for the Federal Judgeship Act, but neglects to mention that opposition to the bill came almost entirely from Republicans. A scheduled hearing on the Act was canceled after Senator Mitch McConnell invoked an obscure procedural rule. Meanwhile, Republican Senators Grassley, Sessions, Brownback, and Coburn prepared supplemental and minority views on the legislation, calling for further study of the problem. Thanks in part to these Republican objections and procedural tricks, the bill never saw a Senate vote.

The bill’s failure last year is important because most people recognize that it is useful, at least in terms of increasing bipartisan support for a proposed expansion of the judiciary, for such an expansion not to take effect until after a presidential election. That way, when the expansion legislation is voted on, no one can be entirely sure who will be in the White House to nominate the added judges. In 2008, a group of Senate Republicans prevented a floor vote on a truly bipartisan bill that would have enabled the federal judiciary to better handle its caseload. But instead of bemoaning the partisanship and obstructionism of those Senators, the Journal now accuses Senator Patrick Leahy of trying to “pack the courts” for supporting legislation in 2009 that would create fewer new permanent judgeships than would the proposed Act of 2008.

Senator Leahy’s sin, according to the Journal, stems from his unwillingness to wait until 2013 to meet the urgent need for new judges. To the Journal, this qualifies as “partisanship” designed to ensure that a Democratic president fills the new seats—even though it was nakedly partisan Republicans who sabotaged a bill that would have allowed a presidential election to intervene before creating the judgeships.

The Journal’s argument gets worse. It turns out that in its editors’ Alice in Wonderland world, Senator Leahy is not only a partisan hack but also the man currently responsible for obstructing the confirmation of judges to fill vacant seats. According to the Journal, “the need for more judges wouldn’t be so urgent if Mr. Leahy didn’t make it so hard to confirm nominees. There are 94 vacancies on the federal courts with only 16 nominees pending to fill them.”

Where to start? The Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges.” Blaming Senator Leahy for the paucity of nominees is pretty silly given this text—nominating judges is President Obama’s job, and sadly he’s moving more slowly than either Bush II or Clinton had moved. It’s similarly absurd to blame Leahy for the slow pace at which the Senate is confirming Obama’s nominees. That bottleneck can be found on the Senate floor, where Republicans are routinely employing filibuster threats and delay tactics such as “holds”—maneuvers the Journal was quick to condemn when President Bush was nominating judges.

Blame for the sorry state of the judicial nomination/confirmation process can be spread around to both Democrats and Republicans. Fixing the problems requires that each side speak honestly about where the blame lies. When powerful newspapers like the Journal go to absurd lengths to contort the record and blame only one side, an already tainted and overly partisan process becomes even worse.

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