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Reid's 'Nuclear Option' Looms as Judicial Nominees Stall

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said the federal courts have spent the last four years unnecessarily burdened by a high vacancy rate.

“Regrettably, qualified consensus nominees are being delayed -- even nominees who are supported by home state Republican senators,” Leahy said. “They are subjected to unnecessary and unprecedented delays on the Senate floor. These nominees have been vetted in a lengthy process and often have the support of all senators on the Judiciary Committee, so there is no reason we cannot consider them in regular order.”

But, Leahy said, Republicans “have consistently refused to consent to what used to be the routine consideration of consensus judicial nominees,” forcing Reid to file cloture on 30 of Obama’s nominees -- a rate 65 percent higher than the number of times cloture was invoked during the eight-year administration of former President George W. Bush, a Republican.

“There is no good reason the Senate cannot consider them more expeditiously,” Leahy said. “These deliberate delaying tactics hurt the Senate, our courts and the American people.”

Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution, a Washington think tank, determined that under Obama it takes an average of 610 days from the time a vacancy occurs at the district court level to a Senate floor vote. During the Bush administration that length of time was 420 days and under President Bill Clinton, a Democrat, it was 447.

The pace is better for court of appeals nominees -- 454 days for Obama compared to 509 for Bush and 483 for Clinton.

But the number of Obama nominees who are actually confirmed is comparatively low. According to Wheeler, 78 percent of Obama’s district court nominees were confirmed as of Dec. 12, 2012, compared to 95 percent for Bush and 86 percent for Clinton. On the court of appeals level, 71 percent of Obama’s nominees have been confirmed, compared to 67 percent for Bush and 77 percent for Clinton.

“More district judges were confirmed than were confirmed in any of the previous eight Congresses,” said Sen. Charles Grassley (R-Iowa), ranking member of the Senate Judiciary Committee. “For circuit nominations, President Obama has the highest percentage of confirmations over the past four presidential terms. In total, the Senate has confirmed 171 district and circuit nominees.”

Grassley said he intends to continue working with Leahy and committee members “in treating President Obama’s nominees in a fair manner.”

“In doing so, I will maintain my approach in evaluating the qualifications of judicial nominees,” Grassley said. “As I have previously stated, I want to ensure that the men and women who are appointed to lifetime positions are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament and professional competence. Above all, judicial nominees must have a respect for the proper role of a judge in our system of checks and balances -- that is to decide cases and controversies according to the facts of the case and established law and precedent. A judge’s role is not to create law or make public policy.”

Obama bears some responsibility for the high vacancy rate and has drawn criticism for his slow nomination pace. According to Wheeler, vacancies have increased during Obama’s tenure while, in general, they declined under Bush and Clinton. The increase was due primarily to the president offering up comparatively fewer nominees.

By the end of their third year in office, both Bush and Clinton had submitted more than 90 percent of their district court nominees. Under Obama it was a bit more than 75 percent.

But the president appears to be moving more quickly in his second term. Since January he has nominated almost 40 judicial candidates and more are expected over the next few months.