- The Washington Times - Sunday, May 1, 2011

Three months after Senate leaders reached a gentlemen’s agreement aimed in part at clearing a backlog of judicial nominations, the chamber is on pace to confirm more nominees in 2011 than in several years.

Despite the uptick, the judicial confirmation process has become significantly more laborious than in past administrations, when all but the most controversial nominees for district and appeals court openings typically sailed through the Senate with little trouble.

“This whole process is radically different than it was a quarter-century ago, when nearly all presidential judicial nominees were given the benefit of the doubt by the opposing party,” said Norman J. Ornstein of the conservative-leaning American Enterprise Institute.

“Since especially Clinton and then [George W.] Bush, the process has become more politicized.”

In a handshake deal reached in late January, Senate Minority Leader Mitch McConnell, Kentucky Republican, vowed to use the filibuster less often in exchange for a promise by Senate Majority Leader Harry Reid, Nevada Democrat, to allow Republicans more opportunities to offer amendments to legislation.

The move was expected to help streamline the confirmation process for presidential nominations for vacant federal district and appeals judgeships, a process that has become mired in recent years.

The deal seems to be paying dividends. President Obama has sent the Senate 61 nominations this year for vacant or soon-to-be-open federal district or appeals court judge posts. The chamber has confirmed 17 total — 15 district and two appeals court judges.

Two more nominees are expected to be easily confirmed Monday.

During Mr. Obama’s first two years in office, he sent the Senate 105 judicial nominations, including two for the Supreme Court, with 62 gaining confirmation.

The president’s confirmation rate in 2009 and 2010 was similar to that of Mr. Bush’s final two years in office, when the Senate approved 68 of his 104 judicial nominations.

But Mr. Bush’s success rate was significantly higher during his first term. In 2001 and 2002, Mr. Bush sent 130 judicial nominations to the Senate, with 100 gaining confirmation. In the second half of his first term, 104 of his 129 nominations were confirmed.

“We have a long way to go to do as well as we did during President Bush’s first term,” Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said on the chamber floor last month. “The Senate must do better.”

Congressional analysts warn against reading too much into the numbers, saying that comparisons among years, congresses and administrations must account for many variables. Supreme Court nominations, for example, take up an extraordinary amount of the Senate Judiciary Committee’s time and often lead to a backlog of filling district and appeals court openings.

“Whatever the numbers suggest, you’ve got to read them with a grain of salt in the sense because they’re not necessarily apples to apples comparisons,” said James R. Copland, director of the conservative-leaning Manhattan Institute’s Center for Legal Policy. “You can’t just look at confirmation rates and say much about it meaningfully.”

Mr. Copland, while agreeing that federal court nominations “have gotten more heated” in recent years, said the tactic of the minority party holding up judicial nominations is nothing new.

“This is but one application of many of those [Senate] procedures that are designed to give individual senators a lot of power and to thwart the majority from being able to get things through the Senate easily,” he said.

But the specific reasons behind holds on judicial nominations aren’t always clear.

“I’m hard-pressed to figure it out, I really am, unless it’s just [Republicans] want to say no to Obama and gum up the works,” said Russell Wheeler of the liberal-leaning Brookings Institution.

Democrats complained during Mr. Obama’s first two years in office that Senate Republicans routinely held up president’s judicial nominations for months or longer, only to vote in favor of the nominees when a vote ultimately was brought to the Senate floor. Democrats said the tactic proved that the holds were placed for reasons that were political rather than ideological.

“It may be on some of these cases be that senators simply take them hostage for leverage on unrelated items,” said Sarah A. Binder of the Brookings Institution. “It’s really hard to see why they’re doing this.”

But, Ms. Binder added, the mission of district courts has evolved over the years, with the courts increasingly hearing more high-profile and business-related cases ending in costly settlements. The result has put district judges under more public — and senatorial — scrutiny.

Judicial analysts say it’s unclear whether the pace of confirmations will continue through the rest of the year and beyond. Senate leaders thus far have scheduled votes only on court nominees who were unanimously approved by the Senate Judiciary Committee, leaving more controversial nominees for later in the year.

“The short answer is that it’s too early to tell,” Mr. Wheeler said. “But the confirmation process may be falling into a pattern similar to that for [George W.] Bush, which is a fairly smooth road for district nominees but not for circuit [court of appeals] nominees.”

“We are seeing more confirmations, but it remains quite slow, especially given the backlog,” added the American Enterprise Institute’s Mr. Ornstein. “It will be tested when any remotely controversial nominees come up.”

• Sean Lengell can be reached at slengell@washingtontimes.com.

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