Judicial Nomination Stall:

The Senate has confirmed President Bush's appellate judicial nominees at an amazingly slow rate. Despite pledges to confirm three additional nominees before Memorial Day, the Senate has only confirmed two nominees all year, while numerous well-qualified nominees sit and wait. By comparison, a Republican Senate confirmed eight of President Clinton's appellate nominees during his last year in office. Since January 2007, the Senate has confirmed eight appellate nominees, whereas a Republican Senate confirmed fifteen during President Clinton's last two year.

It's certainly possible that the Senate rush several nominees through over the summer, but even with such an effort, this Congress will stand out for its snail-like pace. So it should be no surprise that Republicans are upset. Senator Mitch McConnell, in particular, has had enough.

At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent.

The Majority said it would treat Republican senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator.

The Majority said it would do its 'utmost,' said it would do 'everything' possible, said it would do 'everything within its power' to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees.

The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences.

Certainly one reason for Senate Democrats to stall on President Bush's nominees is their hope to leave seats open that could be filled by a President Obama. Even so, I find the level of intransigence a bit surprising. Among other things, the unprecedented slowdown gift wraps an issue for Senator McCain. McCain needs help motivating the conservative base, and there are few issues that resonate among such groups like judicial nominations. All it would take to disarm the issue would be to confirm a handful of high-profile, exceedingly qualified nominees, such as Peter Keisler, who have widespread support.

As longtime readers know, I also worry that the unprecedented intransigence risks further exacerbation of political conflict over judicial nominations. While I do not expect Republican Senators to filibuster or otherwise obstruct a President Obama's nominees — and I will not support such efforts — such tactics appear increasingly likely. This is unfortunate. What we need at this point is not more nominations conflict, but a gradual de-politicization of the nomination process so that Presidents of either party can select the most qualified nominees who share their jurisprudential vision. I believe the Senate should have rapidly confirmed President Bush's nominees, and I hope (even if in vain) that the Senate will do the same for President Obama or McCain.

UPDATE: I won't rehash it all here, but I've posted extensively on the history of judicial nomination fights before. I summarized these posts (and provided links) in this post: "Judicial Nomination Fights -- Past and Present."