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By Marion Edwyn Harrison, Esq.
April 14, 2008
The direst observations and prognostications about ongoing leftist obstruction in filling Federal judicial vacancies continue to reflect reality. Few, if any, people cognizant of what is transpiring on Capitol Hill fail to recognize a reality: United States Senate Judiciary Chairman Patrick J. Leahy (D-VT) and a coterie of his colleagues are pursuing the goal of blocking as many George W. Bush judicial nominations as possible in order to create a huge number of vacancies on the Federal Bench to be filled by a Democratic President and 111th Congress United States Senate.
The statistics vary only inconsequentially. As of April 14, 2008, the following relevant figures apply.
Let’s begin by a figure so startling as superficially to be unbelievable. The geographic jurisdiction of the United States Court of Appeals for the 4th Circuit, which sits in Richmond, Virginia, includes five States: the Carolinas, Maryland, Virginia and West Virginia. The Court is supposed to have 15 Judges. It has 10. What is the even more startling figure? One such seat has been vacant almost fourteen years - yes, 5006 calendar days, as of April 14, 2008. Of course, the present Senate cannot be blamed for most of the delay. However, it clearly can be blamed for perpetuating that delay and thereby maintaining it until post-January 20, 2009 and the Majority Leadership’s (hoped-for) Democratic President.
Other figures, not unlike - except worse - those reported from time to time in this commentary, are equally damning if not quite so dramatic or incredible.
There are 28 nominations pending in the Senate, 10 Court of Appeals, or appellate, judgeships; 18 United States District, or trial, judgeships. Not surprisingly in the appellate tribunals alone there are seven “judicial emergencies,” as that designation objectively is determined by the career, nonpolitical Administrative Office of the United States Courts. That is seven out of only 13 such courts. Also not surprisingly, litigation in 16 States of the Union, plus the District of Columbia and two Territories, adversely is affected.
In the last year of President William J. (Bill) Clinton’s second term the (Republican) United States Senate confirmed eight Court of Appeals nominees. The present (Democratic) Senate has confirmed only one such nominee and its legislative life is about three-quarters spent. Comparable figures for District Court confirmations are 31 and four.
Three Court of Appeals nominees were nominated almost two years (93 weeks) ago.
So much for revealing statistics. No wonder it is so very difficult to induce a prominent and qualified attorney, academic or State judge to submit to a Presidential nomination for the Federal Bench. These statistics alone comprise a dramatic deterrent. Poor pay doesn’t help. Further, how many such individuals are willing to undergo the Senatorial torture chamber - delay, denunciation, diversion from one’s law practice, academy or State judgeship.
The Constitution, Article II, Section 2, pertinently states that the President “ . . . by and with the advice and consent of the Senate, shall appoint . . . judges . . .” It says nothing about, nor even gently implies, a Senatorial power, much less a Senatorial duty, to delay. The clear Senatorial obligation, consistent with the Constitution, common courtesy and basic civility, is promptly to “advise” and after reasonably prompt, objective and businesslike evaluation, to vote. Those offending Senators disgrace themselves. Far worse, they jeopardize the Federal Judiciary and the rights of the citizenry to timely litigation.
This writer much regrets the opportunity once again to write upon this rather sordid subject. The series regrettably is long.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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