Federal Courts and Nominations

Boozman Needs to Step Forward

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The federal judicial vacancy crisis in America has reached Arkansas, and Sen. John Boozman can do something about it.

The Framers of our Constitution created the third branch of government, the judiciary, and today our courts are more critical to our nation’s democratic way of life than ever. The Framers also decided that the judiciary may not staff itself.

Instead, the Constitution establishes a duty of the U.S. Senate to provide “advice and consent” to judicial nominees chosen by the president. While this isn’t a blank check for the president, at minimum it requires the Senate to give swift consideration to his qualified, uncontroversial nominees.

The Senate, however, has fallen far short of this duty in recent years. Consequently, the federal bench has been burdened with 80 or more vacant judgeships for nearly 1,000 days and counting — a sky-high number of vacancies over an alarming length of time that is both unprecedented and unforgivable. During a similar point in President George W. Bush’s first term, senators took an average of about 20 days to get a U.S. District Court nominee a vote on the Senate floor.

During President Barack Obama’s term? Roughly five times that long.

To make matters worse, 34 current vacancies have been officially designated “judicial emergencies” by the Administrative Office of the U.S. Courts, meaning 34 empty judicial seats are in courts with workloads so heavy that remaining judges are under great stress trying to process them.

Chief Justice John Roberts has explained that the “persistent problem” in the process of filling judicial vacancies has caused “acute difficulties for some judicial districts.”

Make no mistake: The high number of vacancies nationwide fundamentally undermines our system of justice. As American Bar Association President Bill Robinson said recently, the delay in confirmations must be stopped because “it’s bad for business, it’s unfair to individuals, and it slows government enforcement actions, which ultimately costs taxpayers money.”

The Senate’s tendency toward petty partisanship only adds insult to injury, reaching a new low last month when Utah Sen. Mike Lee vowed to block every one of President Obama’s judicial nominees. Even Sen. Lee himself admits that his reckless obstruction has nothing to do with the qualifications of a particular judicial nominee. Under any circumstance this would be unacceptable, but given that 10 percent of the federal judiciary is currently unstaffed, doing so damages the third branch.

Today in the Eastern District of Arkansas, which includes Jonesboro, a judicial vacancy exists, and on Nov. 2, 2011, President Obama nominated Kristine Gerhard Baker to fill it.

Baker has terrific qualifications for the position, and she has earned the vocal support of Sen. Boozman, who told his fellow senators, “I believe Kris Baker will do an excellent job and that we will all be proud of her future service on the bench. I congratulate her on her nomination and strongly support her confirmation.”

Not surprisingly, Baker was passed out of the Judiciary Committee on Feb. 16 by a nearly unanimous vote — losing only the support of Sen. Lee. It remains to be seen how long she’ll have to wait for an up-or-down vote on the Senate floor.

This is where Sen. Boozman needs to step in. The effort to delay the confirmation of well-qualified and uncontroversial nominees like Kristine Baker is as pointless as it is harmful to the judiciary and to the lives of prospective public servants like Baker. Sen. Boozman should not let his colleague from Utah take out his political pique with the president upon the people of Arkansas and its courts.

The Senate’s inability to confirm federal judges in a timely manner is just one example of how partisan dysfunction in Washington is damaging our country, but it is a particularly glaring and fixable one, if senators such as Sen. Boozman are willing to show some political courage.

If he fights for her, Baker will become a judge, not a political pawn. It’s time for Sen. Boozman to step forward.

Doug Kendall is president of the Constitutional Accountability Center.

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