Empty Benches: The Senate's Embarrassing Stall on Judicial Nominations

Jon Stewart is right. There are countless reasons why Stephen Colbert was justified for coming to Capitol Hill and mocking the Congress. But there was one main reason why Colbert's testimony resonated so strongly with so many millions of people as it circulated through the blogosphere: it brilliantly captured the dark comedic absurdity of the place and the people who currently run it. His virtuoso performance was compelling and funny precisely because it was so true. And truth is a defense; in comedy, in law, and on the Hill. As Stewart later put it: "You can't embarrass Congress."

Some in Washington's Establishment -- politicians, lobbyists, journalists -- may still stoically declare offense at an affront to the dignity of the Senate and the House of Representatives. But many of the rest of us outside the Beltway have long since moved on to ridicule, if not contempt, for what the Founding Fathers deemed should be our first branch of government. We are the people who laughed at, not with, House Majority Leader Steny Hoyer (D-Md.), when he told Fox News on Sunday that Colbert had embarrassed himself by showing up on Capitol Hill and testifying about America's schizophrenic views about undocumented immigrants and immigration reform.

In my bailiwick, for example, nothing explains or justifies why the current Congress is worthy of disrespect more than the current state of federal judicial appointments. The four corners of the story have been in place for 15 months or so, but the present catastrophe has gotten much more media play recently as Washington contemplates Democratic losses in the Senate following the mid-term elections. As Dahlia Lithwick and others have well pointed out, there is currently a shocking 10-percent vacancy rate on the federal bench, a direct result of the failure of the Senate to fill vacant judicial spots with candidates appointed by President Barack Obama. The costs of this failure both to "advise and consent," say Lithwick and Carl Tobias, are dear:

"This will directly affect thousands of ordinary Americans -- plaintiffs and defendants -- whose liberty, safety, or job may be at stake and for whom justice may arrive too late, if at all. In some jurisdictions, civil litigants may well wait two to three years before going to trial. In jurisdictions with the most vacancies, it will often take far longer for published opinions to be issued, or courts will come to rely on more unpublished opinions. More worrisome still, because the Speedy Trial Act requires that courts give precedence to criminal cases, some backlogged courts have had to stop hearing civil cases altogether.

There is no excuse for this. Over the past three decades, the Senate has essentially taken an administrative matter -- approving bright lawyers who have been properly vetted for a role on the bench -- and devolved it into a partisan policy matter. Instead of accepting the centuries-long premise that the legal landscape in America possesses a vast and vibrant center, confidently capable of generating moderate, independent judges, Senate leaders now see an ideologue lurking behind every background check. Instead of approving 50 good women and men to serve on the lower federal courts and maybe enduring a fanatic or two every now and again (a fanatic whose decisions would be subject to appellate review, mind you), the Senate now is 103 judges behind in its work. It's no wonder America as a general rule wants to fire the laggards behind this record; no boss would accept such incompetence from a worker.

Take, for example, the case of federal trial court nominee Kimberly Mueller. I cite her case because Attorney General Eric Holder cited her case Tuesday in the Washington Post. The nation's chief law enforcement officer wrote: "In the Eastern District of California, in Sacramento, there are 1,097 cases filed per judge annually. Six months ago, the president nominated California Judge Kimberly Mueller to help relieve that workload. Judge Mueller is a distinguished jurist with seven years' experience as a magistrate judge, a unanimous rating of well qualified from the American Bar Association and the unanimous backing of the Senate Judiciary Committee. Yet she has still not been confirmed."

The scores of empty federal benches all around the country are a symbol of colossal bipartisan failure. The Democrats in the Senate didn't hop to duty when President George W. Bush sought to appoint his candidates. It was they, after all, who roughly filibustered Bush's nomination of Miguel Estrada in 2001. And, of course, famously, it was Vice President Joe Biden and his fellow Democrats on the Senate Judiciary Committee who voted down Robert Bork when President Ronald Reagan appointed him to the Supreme Court in 1986. Ask Justice Clarence Thomas what he thinks of the way Senate Democrats handled his nomination in 1991.

But we are nearly 10 years removed from L'Affaire Estrada, nearly 20 from Anita Hill and Company, and some of the kids going to law school today were just being born when Bork was borked. Meantime, the problem of under-staffing the federal courts has become markedly worse during the Obama administration. For Republicans, keeping the federal courts understaffed may be good red-meat, red-state politics. It's another way to say "no" to the president's agenda. But the Great Judicial Stall of 2010 also helps the GOP in the most practical way implement a core conservative policy -- limiting the role of the federal judiciary.

Indeed, stalling on federal judges is a sneaky (but clearly effective) way to counteract the impact of the great flood of civil litigation (mostly aimed at corporate defendants) that has inundated the federal courts over the past 30 years. You can give out keys to all the courthouse doors you want -- as some say congressional liberals have done over the past 40 years with a broad array of new federal statutes granting a right to sue -- but if there is no judge to hear the lawsuit, those federal rights gracefully granted are, practically speaking, meaningless.

The Administrative Office of the U.S. Courts, as formal and dignified a body as exists in Washington, recently declared "judicial emergencies" in 22 states because there are so many vacancies on federal benches there. In other words, the judicial branch is shouting at the other two branches to keep up their ends of the constitutional "advise and consent" bargain. It is a cry once heard by the late chief justice of the United States, William Rehnquist, and one made more recently by (Democratic appointee) Supreme Court Justice Stephen Breyer and (Republican appointee) Supreme Court Justice Anthony Kennedy: the rule of law itself is imperiled when the federal judiciary is not allowed to function as it should.

It doesn't matter any longer who started the tit-for-tat over judicial nominations. No one should care anymore which side will benefit from a cease-fire. The important fact here is that bright, earnest, distinguished men and women, willing to make personal sacrifices in order to serve their country as federal judges, are being denied the opportunity to do so because of petty politics. I'd like to see Colbert make a joke out of that the next time he's invited to speak on Capitol Hill. Did you hear that, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)?