On August 7, the Senate left town for its month-long summer recess, a pretty long break for lawmakers who have accomplished so little.  In terms of meeting its constitutional responsibility to fill judicial vacancies, the Senate has confirmed a whopping total of five new federal judges to date this year.  That’s not even one per month.  During the same period in 2007, the Senate, with a Democratic majority, had confirmed 26 of President George W. Bush’s judicial nominees, and went on to confirm another 14 that year.  

The five confirmations to date by the Senate this year is not just an objectively low number, it’s well below the average of 27 confirmations during the same period for each of the last 15 years (that is, through August 7).  At this rate, the Senate is on track to make ignominious history – the fewest number of judicial confirmations in the last two years of a presidential term going at least as far back as the Eisenhower Administration.  That’s not a record to which the Senate should aspire.

Nothing but partisan obstruction can explain what’s going on.  It’s not as though the Senate has no nominees on whom to vote.  To the contrary, when Senators went off to the beach earlier this month (or to run for President), they left 14 nominees behind on the Senate floor, twisting in the wind, still waiting for a vote.  Nor would Senators have needed to break a sweat to give these nominees a vote – all of them are non-controversial, and each cleared the Republican-led Judiciary Committee by voice vote.  Making matters worse, more than a third of these nominees would fill seats that the federal judiciary considers to be “judicial emergencies,” meaning that the courts on which they would sit are unduly overworked and justice is being delayed.  There is no reason other than partisan obstruction that these nominees should not have been voted on promptly after clearing the Committee.

A good example of the obstruction is Senate leadership’s treatment of District Judge L. Felipe Restrepo – nominated last November to fill what is now a judicial emergency seat on the United States Court of Appeals for the Third Circuit.  Restrepo has the bipartisan support of his home-state Senators, Pat Toomey (R-PA) and Bob Casey (D-PA), and was confirmed by the Senate just two years ago to the District Court by voice vote.  Nevertheless, Judiciary Committee Chairman Chuck Grassley (R-IA) made Restrepo wait until June just to get a hearing in the Committee, and now, having been reported favorably out of Committee by a voice vote, Restrepo is still waiting for a confirmation vote on the Senate floor.  There’s absolutely no reason why Judge Restrepo’s nomination should not have been processed more expeditiously by the Senate.  It seems quite clear that conservatives in control of the Senate are committed to slow-walking the entire confirmation process and keeping President Obama from filling as many judicial vacancies as they think they can get away with. 

Indeed, Senator Grassley himself recently demonstrated (again) how low Senate conservatives have sunk in this regard when he single-handedly blocked Senator Chuck Schumer’s request for unanimous consent to allow a yes-or-no vote on three nominees to District Court seats in New York (two of which are judicial emergencies).  Grassley’s action was not only unreasonable, but when Senator Schumer protested the trickle of judicial confirmations this year, Senator Grassley countered that the Senate should be able to take credit this year for nominees confirmed last year. How many Americans could get away with not doing their jobs this year because they worked last year?  In a caustic finishing touch to his remarks, Senator Grassley told Senator Schumer to “put that in your pipe and smoke it.”  

Surely the American people, and our federal judicial system, deserve better than this.  When the Senate returns on September 8 after a month-long break, it needs to start doing the people’s business.  It should begin with prompt yes-or-no votes on all of the judicial nominees pending on the Senate floor, and prompt hearings (and then floor votes) for all those in Committee.  The American people, who rely on the federal courts for vindication of important legal rights, deserve at least this, as do the nominees themselves.