Judicial nominees sitting on sidelines

As if Congress didn’t have enough on its plate this hectic lame duck session — the “fiscal cliff,” Benghazi probes and the farm bill to name a few — the Senate is facing an escalating backlog of pending federal judicial nominations that the legal community says is hurting the justice system.

Senate leaders say they hope to act on many of the nominations by the end of the year. The list grew longer last week when the White House sent the chamber nominations for seven district court and one court of international trade judgeships that are vacant.

Yet the busy late-year calendar and partisan bickering means more than a handful of open judgeships may remain unfilled by the new year.

When Congress recessed in September for several weeks ahead of the November elections, they left behind 19 judicial nominations that had been approved by the Senate Judiciary Committee but that were awaiting final Senate action. Most are noncontroversial, as 17 received bipartisan support in the committee and seven have support from Republican home-state senators.

There are 82 federal judge vacancies nationwide — 53 more than at this point in President George W. Bush’s first term, said the Senate Judiciary Committee’s Democratic office.

Republicans have been in no hurry the past year to act on many of Mr. Obama’s judicial picks, as they were hopeful a GOP president would occupy the White House in 2013 and appoint his own candidates.

Senate Minority Leader Mitch McConnell, Kentucky Republican, used this rationale to lead a filibuster in July to block the nomination of Robert E. Bacharach for the Denver-based 10th Circuit Court. Democrats said it was the first time in Senate history a judicial nominee who cleared the Judiciary Committee with bipartisan support had been blocked on the floor.

With Mr. Obama’s re-election this month, Democrats say it’s time for Republicans to drop their “obstructionism” and act fast on the president’s nominees.

“There is no justification for holding up final Senate action on these judicial nominations,” Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said last week. “These are not judgeships that Republicans can claim they wish to keep open in order to be filled by nominees from President Obama’s successor next year.”

“Delay for delay’s sake is wrong and should end.”

But Sen. Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, pushed back, saying the Senate has been “more than fair” to the president by confirming 160 of his nominations, including two of his Supreme Court picks. By contrast, he said the Senate confirmed only 122 of President George W. Bush’s nominees during a similar time frame.

“Senate Republicans will continue to work cooperatively,” the senator said Monday. “At the same time, we fully expect the [Democratic] majority to act consistent with past Senate practice.”

The committee’s Democratic office has a different perspective. It says the Senate’s 78 percent confirmation rate of Obama judicial nominations (160 confirmed out of 206 total nominations) is lower than the 87 percent confirmation rate Mr. Bush enjoyed during the same period of his presidency (200 confirmed out of 231 total nominations).

Senate Democrats say the confirmation percentage for Obama administration nominees is the lowest of any president in the past 36 years.

Judicial nominees require a simple majority of the Senate’s 100 members for confirmation. They don’t need House approval.

American Bar Association President Laurel G. Bellows has urged the president to make filling judicial vacancies a top domestic priority for his second term.

“Our judicial system is predicated on the principles that each case deserves to be evaluated on its merits, that justice will be dispensed evenhandedly and that justice delayed is justice denied,” said Mr. Bellows in a letter to the president last week. “None of this is achievable if the judiciary is denied the funds or the judges it needs to do its important work.”