The Year of the Obstructionists : With Senate stalling, Clinton should push his court nominations

The U.S. Senate seems headed toward a disturbing new record for inaction on judicial nominations, but senators still have a few weeks to do better before this congressional session ends.

Partisan politics is certainly no stranger to Capitol Hill decision-making during a presidential election year. Otherwise innocuous bills and noncontroversial presidential nominees can suddenly become nasty battlegrounds for Republicans and Democrats posturing to woo voters. That appears to have happened with President Clinton’s nominees to the federal bench.

Federal judges have lifetime tenure and thus can influence jurisprudence long after the president who appointed them has left office. Appellate judges are especially influential.

Only 17 Clinton nominees to the federal bench have been confirmed this year. This compares dismally with Senate action even in other presidential election years. In 1992, for example, the Senate confirmed 66 judges; 42 were confirmed in 1988, 43 in 1984 and 64 in 1980.

Moreover, all 17 nominees confirmed this year were at the trial court level. So far the Senate has blocked each of Clinton’s eight nominees to the appellate bench. In many other presidential election years, the Senate cleared appellate nominees, including 11 in 1992 and seven in 1988.

In some cases, Senate Republicans have found “problems” to justify inaction. For example, William Fletcher, a Boalt Hall law professor nominated to California’s 9th Circuit, has been widely praised for his intellect and his moderate leanings. But Senate opponents, noting that Fletcher’s mother sits on the same court, invoked an obscure nepotism law to block confirmation.

Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) brokered a tawdry deal by which Judge Betty Fletcher took senior status, a form of semiretirement, to clear the way for her son’s confirmation. She has done that, but still no vote is scheduled on William Fletcher.

Similarly, the confirmation of Merrick Garland, nominated to the Court of Appeals of the District of Columbia with the support of no less than conservative Republican Strom Thurmond of South Carolina, has languished. Some senators insisted that the workload of the 12-member D.C. circuit court no longer justified the 12th seat to which Garland was nominated. But a second vacancy recently opened; will those senators now argue that the 11th seat too is superfluous, again blocking Garland’s confirmation?

Clinton has been notably reticent about defending his federal bench nominees, afraid to stoke yet more opposition. The president should speak up now. As new retirements increase the number of federal court vacancies, the Senate’s continued inaction on these worthy nominees looks more like raw obstructionism than deliberation.