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While Supreme Court nominee Sonia Sotomayor made it through the Senate relatively easily (68-31 with 9 Republicans joining a unified Democratic Senate in approving the justice), the rest of President Barack Obama’s lower court nominees are moving at a much slower pace.

Slower than molasses, even.

Only three of his 22 lower court nominees have been confirmed so far and the latest, Roberto Lange (for a federal district court appointment in South Dakota), waited 3 1/2 months to be approved. Gerard Lynch from New York and Jeffrey Viken from South Dakota, the other two nominees to be confirmed, spent a similar amount of time waiting to be approved.

Two unapproved nominees, Andre Davis of Maryland and David Hamilton of Indiana, cleared the Senate judiciary committee almost 150 days ago. Both of them are still waiting for a floor vote. Another nominee, Beverly Martin, has the support of Georgia’s two conservative Republican senators and was unanimously reported out of the Senate judiciary committee almost 50 days ago. She, too, has not received a Senate floor vote.

All in all eight of Obama’s nominees are currently waiting for floor action.

In some ways this is nothing new. Senators in both parties have been guilty for a while now of using procedural tactics to block or delay confirmations. However, as Slate’s Doug Kendall points out, these heavy-handed tactics were typically reserved for controversial candidates whereas the Republicans appear to be contesting them all.

From Kendall’s article:

“To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. While there has never been an agreed-upon definition of what that means—it’s an eye-of-the-beholder type of thing—there has consistently been a large category of nominees that are not considered controversial. They have typically made it easily through the Senate confirmation process, no matter how rough the ride is for their controversial counterparts.”

Let’s compare Obama’s progress with his predecessor. During the last two years of his presidency, George W. Bush’s support was dwindling and he faced a Senate under Democratic control. Still, 26 of Bush’s 68 nominees cleared the floor within 3 months of Bush nominating them and 23 of the Bush nominees were confirmed on the Senate floor within a week of passing out of the judiciary committee.

Bush’s first two years went about the same. A Democratic majority in Congress confirmed 100 of Bush’s nominees in 17 months, even after delays due to a change in party control.

So why is it that the more popular Obama, with a filibuster-proof majority in the Senate, is having so much trouble?

Again let’s turn to Kendall’s article.

“The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.”

While I can’t say I agree much with Kendall’s description of our government’s checks and balances as “a set of arcane rules,” Kendall goes on to describe why the G.O.P.’s tactics are detrimental to our whole judicial system.

“This is unprecedented and dangerous. There are already 95 vacancies on the federal bench at a time when there is bipartisan agreement that we need more judgeships. The last thing we need is for existing seats in overworked courts to go unfilled.”

“Even more important, Republican obstruction of uncontroversial nominees undermines the one part of the judicial confirmation process that was still working, until now. Well-qualified nominees who enjoy bipartisan support should be able to count on a fair and relatively smooth Senate confirmation process. This is critical because while they’re waiting, the careers of these nominees go on hold. Given the demands of the bench, and the gap between judicial salaries and what these candidates could earn in private practice, the nation is already lucky that top candidates are willing to serve. If we throw in an unpredictable and lengthy confirmation process, the quality of the federal bench—and the dispensation of justice—will unquestionably suffer.”

Sources:
http://www.prospect.org/cs/articles?article=the_next_war_over_the_courts
http://www.cnn.com/2009/POLITICS/08/06/sonia.sotomayor/index.html
http://www.slate.com/id/2233309/#return

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