Action needed to avoid court crisis

"We must never forget that it is a constitution we are expounding … intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

U.S. Supreme Court Justice John Marshall wrote the above statement as the high court ruled in the landmark 1819 case McCulloch v. Maryland.
It's too bad that the U.S. Senate doesn't take Marshall's enduring words very seriously.

The proof of that is quite evident.

Attorney General Eric Holder, in an opinion piece published by the Washington Post in late September, noted that more than a year ago, President Obama nominated Jane Stranch, a respected Nashville labor lawyer, to a seat on the U.S. Court of Appeals for the 6th Circuit.

That vacancy had been declared a "judicial emergency" because the Sixth Circuit does not have enough judges to promptly or effectively handle the court's caseload, leading to serious delays in the administration of justice to people in Tennessee and other parts of the 6th Circuit.

Yet despite the fact that Judge Stranch enjoyed the support of both of her Republican home-state senators and bipartisan support in the Senate Judiciary Committee, she was forced to wait almost 300 days for an up-or-down vote by the full Senate. When she finally received that vote earlier this month, she was confirmed overwhelmingly.

And, just so you know, South Dakota Democrat Sen. Tim Johnson voted for her confirmation. Our state's Republican Sen. John Thune voted no.

Holder observed that Stranch's story is all too typical, and he's not talking so much about Republicans voting against  President Obama's nominees to fill vacancies on the benches of federal courts.

He was focusing on the fact that nominee after nominee has languished in the Senate for many months, only to be confirmed by wide bipartisan margins when they finally do receive a vote.

Congress was in its last week in session before adjourning before the November elections. Holder noted that, "… our judicial system desperately needs the Senate to act."

Guess what? They didn't.

Bipartisan bickering is largely responsible.

The Associated Press reported in early September that a determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago.

The delaying tactics have proved so successful, despite the Democrats' substantial Senate majority, that fewer than half of Obama's nominees have been confirmed and 102 out of 854 judgeships are vacant.

Forty-seven of those vacancies have been labeled emergencies by the judiciary because of heavy caseloads.

Cynical me fully expected to find that Sen. Thune is among the big trouble makers, since it has become clear in the last year or so that he feels his job description includes striving to do the exact opposite of what the Executive Branch is trying to accomplish. Oh, and then saying it's what South Dakota wants.

But Thune, actually, when you examine his voting record, has at least been showing signs that he takes the job of voting for federal judges rather seriously.

In this last year, there have been a couple instances, including the one involving Stranch noted above, when Thune has voted against a federal judge nominee while Johnson has voted for that person.

And Thune voted against Sotomayor and Kagan, Obama's two nominees who were eventually confirmed as justices on the U.S. Supreme Court; Johnson voted for both.

This is what's troubling, however. In the last 10 months, according to both Johnson's and Thune's voting records, the U.S. Senate had an up and down vote on whether to confirm a judicial nominee 17 times.

In other words, on average, less than two per month.

It is now October. And amazingly, as one begins to ponder the workings of Congress, especially with an election only about a month away, the next opportunity for the Senate to hopefully take action on this problem won't come about until next year.

We know both Thune and Johnson will be back in the Senate in January. South Dakotans should encourage both men to do something about this gridlock, even though we could sit back, taking comfort in the knowledge that two federal judge openings in our state were filled last year.  

Naturally, it is important that the Senate only consent to placing the most qualified individuals on the bench. No one expects a senator to ignore a nominee's viewpoints, but members of both parties should focus on a nominee's qualifications.

And take action. Soon.

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