As congressional machinations intended to resolve the worst economic crisis since the Great Depression transfixed the nation, the Senate took a little-noticed but extraordinary action. Senators unanimously confirmed 10 federal district court nominees, even though the Senate has traditionally approved few judges after Labor Day in presidential election years.
This action left the federal bench with the lowest vacancy rate in two decades, even though allegations and recriminations, partisan divisiveness and pay-backs have troubled judicial appointments over that period.
Charges, countercharges and partisan infighting have attended the choice of judges since the 1980s, mainly because one party has controlled the White House, which nominates candidates, and the other party has possessed a majority in the Senate, which confirms nominees.
Democrats have accused President Bush of forwarding ideologically conservative nominees, who are not consensus choices, and of refusing to consult senators from the states in which vacancies arise before tapping nominees. Republicans have alleged that Democrats have not promptly investigated Bush nominees or expeditiously scheduled Judiciary Committee hearings and votes, as well as Senate floor debates and votes.
Despite those problems, the selection process has in fact performed rather well over the 110th Senate, and a very small number of judgeships remain open. Eleven out of 179 federal appellate seats are vacant and 24 out of 678 federal district court positions lack judges. There have not been so few openings since Ronald Reagan was president.
For example, when President George H.W. Bush finished his term, the federal courts had nearly 100 openings. At the end of President Bill Clinton's term, there were more than 80 empty seats, almost 30 of which were on the appeals courts. Appellate judgeships are deemed more significant because the regional circuits are effectively the courts of last resort for 99 percent of appeals, as the Supreme Court hears such a minuscule number. The regional circuits correspondingly decide extremely controversial issues, such as capital punishment, free speech and terrorism.
The White House deserves much responsibility for the judicial vacancies. The Judiciary Committee has rather promptly considered nominees. However, Bush nominated in July a third of the district nominees pending upon the Senate's return from its August recess. When the president forwards big packages of nominees on the eve of a Senate recess, it complicates smooth approval.
Judicial selection traditionally slows during a presidential election year. However, the Senate took the unusual step of confirming 10 nominees in September because Democrats and Republicans cooperated and reviewed consensus choices. Both parties deserve praise in working together for the good of the judiciary and the country.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.