Yesterday, the Senate confirmed judicial nominee Michael Simon by a lopsided 64 to 35 vote. His vote in the Senate Judiciary Committee was an even more lopsided 14–4 vote, so Simon should have been on the fast track to confirmation. Instead, his seat remained vacant for nearly two years before Simon finally received a confirmation vote because Republicans have erected yet another obstacle to judicial confirmations:
“Traditionally,” Judiciary Committee Chairman Patrick Leahy said from the floor Tuesday, a lopsided committee vote would mean “a vote on the Senate floor almost the first day after he was reported” from the committee.
“It should not have taken more than four months after Mr. Simon had been approved for a second time,” Leahy said, describing the current climate on nominations as “unseemly.”
The problem was in the numbers. While the committee vote was emphatic, Republicans generally said they would allow only nominees who won unanimous approval to move to the Senate floor. The four opposing votes from Judiciary — all from Republicans — meant that Senate leaders would be forced to negotiate a deal to bring his name to the floor. That process took months.
The idea that a nominee must please every single member of the judiciary committee before they can receive a timely floor vote is absurd — and it is an incredibly high bar to clear. Committee member Mike Lee (R-UT) thinks that child labor laws are unconstitutional. Committee member Tom Coburn (R-OK) thinks Pell Grants and federal student loans are unconstitutional. So they are not the kind of senators who are likely to see eye to eye with nominees who believe that they should actually follow the Constitution.
Moreover, this game of obstructionism is producing tragic results for ordinary litigants in federal court. Along the Texas border, judges have only enough time to treat serious criminal defendants as if they were minor traffic offenders. In the Ninth Circuit, a massive appeals court that encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, the judges are so overburdened that they rely on partially retired judges in their 80s in order to function. Throughout the country, the average civil litigant must wait nearly two years for a jury trial, and this wait grows even longer if their case is appealed.
During Obama’s first two years in office, the Senate confirmed fewer judges than during the same point in any previous presidency, but President Obama isn’t the one who suffers because of this. It is the thousands of Americans forced to wait for justice who do.