None of the judges at the D.C. Circuit court returned calls seeking comment for this article.
The root of the problem is a broken nomination system.
Whenever a federal judge retires or dies, it is up to the president to nominate someone to take his or her place. The process historically has been closely coordinated with senators from the home state of the court. The senators often submit the names for nomination, the president then nominates them, and the full Senate vets and votes on them.
But if the president picks someone that a senator opposes, there are several ways for that senator to halt the nomination process, including mounting a filibuster on the Senate floor or speaking out against the nominee to convince colleagues not to confirm the president’s choice. They can also place an anonymous “hold” on a nominee, blocking someone without saying so publicly and without giving any reason for doing so.
There is also an old practice — in place since 1917 — that requires home-state senators to be handed blue pieces of paper in order to register their opinions on a nominee from their state. In some instances, merely not returning that piece of paper halts the nomination process because the Senate Judiciary Committee won’t start hearings until the blue slips are returned.
The blue slips have been increasingly used to block nominees. Reid, for example, has been unable to get his desired nominee confirmed to the Nevada District Court because Senator Dean Heller, a Republican from Nevada, has been withholding his blue slip, citing a position she took that he views as against Second Amendment gun rights.
“The blue slip process has become very problematic,” said Caroline Fredrickson, president of the American Constitution Society, a liberal group that has been advocating for judicial vacancies to be filled. “It’s often not an issue of ideology. It’s just an issue of pure obstruction. It’s an artifact of the senate that in this day of obstruction doesn’t function as it was meant to.”
Non-controversial choices — particularly those in district courts, the first place where most federal cases are heard — have historically passed easily and quickly. What’s changed, judicial observers say, is that even district court nominees are now being held up.
During Obama’s first term, it took an average of 610 days — nearly two years — for a district judge to be confirmed. By comparison, it took an average of 420 days under Bush and 447 days under Clinton, according to a report from the Brookings Institute.
Part of the reason is because Obama had been taking longer than his predecessors to nominate candidates when a vacancy occurs, and advocates for more seats on the bench say he has not made it enough of a priority.
He takes even longer to nominate candidates in states where there are two Republican senators than in states where there are two Democratic senators, or in states with a split delegation, according to the Brookings report. White House officials attribute the delays largely to senators not submitting names of nominees in a timely fashion, and Obama has started naming his choices quicker than he did at the start of his first term.
But it’s also taking much longer for his nominees to get a vote on the Senate floor. Clinton nominees had to wait an average of 30 days for a floor vote, and under Bush it took 54 days. Obama’s nominees are taking 139 days to get a vote, after their confirmation hearings are completed.
“What used to be a sure thing isn’t anymore,” said Russell Wheeler, who tracks judicial nominations at the Brookings Institution. “It used to be a ministerial act. Now it’s turned into something else.”
The reasons are both real and petty. Sometimes senators block a nominee because they oppose that person’s judicial philosophy, or simply prefer someone else. Other times, they do it to gain leverage over the White House on an entirely unrelated matter. In one instance last year, Senator David Vitter, a Republican from Louisiana, blocked a nominee in his home state for several months in the hopes that Republican nominee Mitt Romney would win the presidential race — and nominate someone more conservative.
In Oklahoma, for example, a vacancy opened in the 10th US Circuit Court of Appeals in July 2010. The White House proposed several different candidates, all of whom were rejected by the state’s senior senator, Tom Coburn. Eventually, Coburn gave the White House counsel a resume for Robert Bacharach, a district court judge in Oklahoma. Obama nominated Bacharach in January 2012.Continued...