National Review Online legal commentator Ed Whelan is praising Senate Republicans for their part in a March 14 deal that will deny some of President Obama's judicial nominees a timely confirmation vote. In a recent post, Whelan argues that Republicans scored a win by partially defeating efforts to confirm nominees who were largely uncontroversial, despite a judicial vacancies crisis that denies Americans who seek justice a chance for a day in court. Whelan's victory lap comes at a time when courtrooms are vacant, and it raises questions as who wins under the terms of the deal.
The deal reached by Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) is a compromise over Democratic efforts to bring to a vote 17 mostly uncontroversial district court nominees in the face of Republican resistance. To break the logjam, Reid filed petitions on March 12 to end Republican filibusters on the 17 nominees. Under the deal, the two sides agreed to votes on 12 of the district court nominees, as well two court of appeals nominees, by May 7. Whelan trumpets the deal as a win for Republicans, because fewer judges will be confirmed than Democrats had wanted.
As for the substance of the deal, a Senate Republican staffer tells me: "Looks like we are just going back to regular order. Reid capitulated." Another senior Republican staffer passes on that under the gentlemen's agreement, we can expect to see what would have been expected had the cloture petitions never been filed: Senate action on a couple of these nominees every week or so.
While Whelan calls this a victory for the GOP, the deal means judges should be confirmed at a significantly faster rate than Republicans have permitted in recent history. Although it is impossible to know precisely the degree to which Republicans would have obstructed President Obama's nominees between now and May 7 absent the push to break the blockade of filibusters, if the deal stands nominees could be confirmed at a faster rate than has been the norm in this Congress.
Even with the confirmations resulting from the deal, vacancies will remain at unacceptably high levels, denying countless Americans an opportunity for justice.